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HAYS v. BEVERLY ENTERPRISES

April 24, 1991

DORIS J. HAYS, PLAINTIFF,
v.
BEVERLY ENTERPRISES, INC., DEFENDANT.



The opinion of the court was delivered by: Lee, District Judge.

MEMORANDUM OPINION

Plaintiff initiated this action by filing a Complaint in the Court of Common Pleas of Blair County, Pennsylvania, on or about September 9, 1986. Defendant, Beverly Enterprises, Inc., then removed the action to this Court.

Plaintiff, a licensed practical nurse, alleges in her Complaint that she was wrongfully discharged by her employer, defendant, in that her dismissal is in violation of public policy and was done with the intent to harm her. Specifically, plaintiff contends that her discharge was precipitated by (1) her disclosure of defendant's alleged failure to timely obtain medical care for one of its residents and (2) for her failure to adhere to what she characterizes as an improper method of disposing medications.

Defendant has filed a Motion for Summary Judgement and supporting Brief wherein it asserts that plaintiff's claims do not give rise to a cause of action under the applicable law of Pennsylvania. Defendant argues that plaintiff's claims do not fall within the public policy exceptions to the employment-at-will doctrine which permits an employer to discharge an employee without cause.

Defendant's Motion for Summary Judgment was originally filed on January 19, 1989, and denied by the Honorable Paul A. Simmons in an Opinion and Order dated July 7, 1989. The Court held that plaintiff's discharge, allegedly in retaliation for informing a patient's family that proper health care allegedly had not been given, would constitute a wrongful discharge in violation of public policy under Pennsylvania law. The Court analogized plaintiff's discharge to a situation involving a "whistleblower" who the Court opined was deserving of protection from termination.

On February 2, 1990, during a Status/Pretrial conference held by Judge Simmons, the merits of defendant's Motion for Summary Judgement were again discussed. At the close of that session, Judge Simmons agreed to reconsider his decision and invited defendant to renew or refile its Motion for Summary Judgment.

On or about March 6, 1990, defendant filed its renewed Motion along with an accompanying memorandum of law. At the conclusion of Argument on the Motion which was conducted on May 25, 1990, Judge Simmons indicated that he felt the legal parameters of the public policy exception to the employment-at-will doctrine were unclear and unsettled and suggested that the issue should be certified to the Third Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(d). Before Judge Simmons could act on counsels' proposed Opinion and Order, this case was transferred to this member of the Court.

BACKGROUND

Plaintiff received her GED in 1982 and was graduated from the Altoona Vocational Technical School with an LPN (Licensed Practical Nurse) certificate. After a year of clinical training at the Altoona Hospital, plaintiff passed her state board examinations in 1984. Plaintiff also holds a Nurses Aid certificate from a course she took at the Valley View Nursing Home. Prior to her position with defendant, plaintiff's work-related experiences included service as a nurse's aid at the Indiana and Altoona Hospitals, Seton Hill College, where she provided care for retired nuns, and the Valley View Nursing Home in 1984 where she first worked as LPN.

On May 1, 1986, plaintiff, began working for defendant as a part-time employee at the Hillview Chateau, a personal care boarding facility. The Beverly complex consists of the Hillview Convalescent Center, a facility providing intermediate and skilled care, and the Hillview Chateau, which is essentially a retirement facility. The complex has a resident physician whose duty it is to certify which of the two places better suits the needs of a resident.

On her first day of work, plaintiff was given Beverly's "Employee Handbook" and was instructed to familiarize herself with its provisions.*fn2 On May 19, 1986, plaintiff signed an Acknowledgement that she received and read copies of the facility personnel policies and understood them to be conditions of her employment.

Arthur and Grace Calvert, husband and wife, were residents of the Hillview Chateau Personal Care Boarding Home prior to the time plaintiff came to be employed by defendant. One Doctor Kaczor was Mrs. Calvert's designated treating physician.

In her deposition, Plaintiff indicates that on or about late May, 1986, she observed that Mrs. Calvert was experiencing breathing problems to such an extent that plaintiff felt compelled to notify her supervisor, Linda Byers. Plaintiff stated that Mrs. Calvert's condition did not appear to be acute, but that she wanted to report Mrs. Calvert's condition to her supervisor's attention and seek further instructions. Plaintiff reported that Mrs. Calvert's feet were "edemous, syonodic, and that the resident was breathing more heavily than she had noticed in the past."

Plaintiff states she was told by Linda Byers that Mrs. Calvert's condition "was all in her head." However, plaintiff acknowledges that her conversation with Byers also revealed that Mrs. Calvert's doctor prescribed certain medications, namely three placebos to facilitate the resident's breathing and minimize her discomfort.

Linda Byers' uncontroverted deposition testimony reveals the following history of communications between herself and Mrs. Calvert's treating physician. Between April 26, 1986 and the date Mrs. Calvert was admitted to Mercy Hospital, Byers and/or members of her staff spoke with Dr. Kaczor on six occasions.

On April 28, 1986, Dr. Kaczor was called by a member of defendant's staff, other than plaintiff, concerning Mrs. Calvert's apprehension about being in the home. In response to the call, Dr. Kaczor prescribed certain medications. On May 2, 1986, Dr. Kaczor received three calls from Linda Byers, one of which was precipitated by the findings of a visiting registered nurse whom the family had retained. The nurse noted that Mrs. Calvert had a productive cough and Dr. Kaczor ordered an x-ray and prescribed 500 mg of Ampicillin to be administered every six hours, and one teaspoon of Robitussin to be taken four times daily. The medications were to have commenced immediately. A member of defendant's staff, other than plaintiff, contacted Dr. Kaczor on May 5, 1986, to report on his patient's condition. It was not until June 10, 1986, that Dr. Kaczor was contacted again by Linda Byers. Parenthetically, we note Linda Byers' unrefuted testimony which indicates that Mrs. Calvert had a doctor's appointment sometime between April 28, 1986 and prior to her admission to Mercy Hospital.

Byers' deposition testimony revealed that on June 10, 1986, Mrs. Calvert complained of shortness of breath and that she had had a bad night. Byers observed that Mrs. Calvert's legs and feet were edematous with pitting edema and that her condition was measurably worse than the previous day. Byers contacted Dr. Kaczor's office who, in turn, instructed Byers to take Mrs. Calvert to the Emergency Room for an x-ray to be read immediately. Byers transported Mrs. Calvert to Mercy Hospital via her own car.

Linda Byers and Mrs. Calvert arrived at the hospital emergency room where Mrs. Calvert underwent blood work, x-rays and an electrocardiagram. Linda Byers departed the hospital without Mrs. Calvert. Hospital personnel advised Byers they would contact her regarding ...


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