Colorado Nurse Unable To Show Employer Violation Of Public Policy Based on Violations of Private Organization Code of Ethics.

      Todays posting is by Mark Wiletsky. For more information on this case or wrongful discharge claims generally, please contact Mark Wiletsky at (303) 473-2864 or mbwiletsky@hollandhart.com. 

     In Colorado, and many other states, it is unlawful to force “at-will” employees to choose between their job and violating an important public policy.  Thus, an employee who is terminated for refusing to perform an illegal act, or for exercising an important right or privilege, may be able to assert a claim for wrongful discharge in violation of public policy.  This type of claim, developed by the courts, can be difficult to anticipate because it is often unclear whether an employee’s actions or statements are protected by public policy.  A recent decision from the Colorado Court of Appeals, however, provides some useful guidance and limits when dealing with such claims.

Facts

Donna Jaynes worked as a nurse for St. Anthony’s Hospital (the “Hospital”).  The Hospital suspended Ms. Jaynes as a result of a dispute she had with a physician and a patient’s family concerning patient management, and because she delayed administering medication to a patient for eleven hours. 

Ms. Jaynes submitted two written responses to the suspension in which she denied any wrongdoing.  Instead, Ms. Jaynes claimed that she had been acting as a “patient advocate” consistent with her ethical obligations as a nurse.  After receiving her written responses, the Hospital discharged Ms. Jaynes.

Ms. Jaynes then filed a lawsuit, claiming that her discharge violated public policy.  She also asserted that the Hospital failed to comply with its internal procedures before terminating her.  The district court disagreed and dismissed the case without a trial.  Ms. Jaynes appealed the decision.
On appeal, the court began its analysis with the general rule that employees in Colorado are presumed to be employed “at-will,” which means the employer or employee may terminate the employment relationship at any time, without reason or notice.  Of course, there are exceptions to this rule.  One such exception – wrongful discharge in violation of public policy – occurs when an at-will employee is discharged for (i) refusing to perform an illegal act (e.g., asking an accountant to misrepresent facts in an audit), or (ii) performing a public duty or exercising an important job-related right or privilege, such as filing a claim for workers’ compensation benefits. 

The challenging issue for employers and courts alike is determining what conduct is sufficiently important to the public interest to justify protecting at-will employees from discharge.  Courts have stated that the action taken by the employer must violate a specific statute relating the public health, safety, or welfare, or must undermine a clearly expressed public policy relating to the employee’s basic responsibility as a citizen or her rights or privileges as a worker.  Such guidance, however, is difficult to apply, especially in the health care context, where nearly any dispute regarding patient care could arguably relate to an important public interest in patient safety.

Private Ethics Codes Do Not Reflect “Public Policy”

Here, Ms. Jaynes argued that the Hospital violated public policy because it fired her in retaliation for acting as a “patient advocate,” which she felt was required by ethical codes for nurses.  For support, Ms. Jaynes relied on the American Nurses Association (“ANA”) “Code for Nurses with Interpretive Statements” and the “Role of the Critical-Care Nurse” that is on the American Association of Critical-Care Nurses (“AACN”) website.   

Previous cases have relied on professional ethics codes as a basis for wrongful discharge in violation of public policy claims.  For example, the Colorado Supreme Court held that an employer violated public policy when it terminated a certified public accountant for refusing to violate a professional ethics code. 

In Ms. Jaynes’ case, however, the court concluded that the codes established by the ANA and AACN are unlike professional ethics codes for accountants or other professionals because (i) the ANA and AACN are not governmental entities, (ii) not all nurses are subject to the guidelines (in fact, Ms. Jaynes was not even a member of the ANA or AACN), and (iii) there are no adverse implications (such as sanctions, or license revocation or nonrenewal) for failing to comply with the guidelines.  Thus, even though the guidelines or codes promulgated by the ANA and the AACN are intended to serve the public interest, the court concluded that Ms. Jaynes was not placed in a position of having to choose between violating her ethical “obligation” or being fired.

General statement of public policy is insufficient to support a claim

Ms. Jaynes also argued that the Hospital violated public policy because it discharged her in retaliation for filing a report regarding a patient care issue with the Hospital’s internal quality management committee.  Filing such a report, according to Ms. Jaynes, is an important right or privilege which is protected by Colorado’s quality management functions statute (Colo. Rev. Stat. § 25-3-109).   

The court again disagreed.  It reasoned that the quality management statute did not create a public duty to file internal reports, nor did the statute “clearly articulate a public policy by creating ‘an important job-related right or privilege.’”  Instead, the law is intended only to protect the confidentiality of quality management information.

Importantly, in reaching its conclusion, the court reasoned that a general statement of public policy in state law is insufficient to support a claim for wrongful discharge in violation of public policy.  The court noted that in a previous case, a different panel of the court of appeals relied on a general policy statement against insurance fraud as a basis for a wrongful discharge claim, but the Jaynes’ court declined to follow that case.  This conflict is potentially significant because it increases the chances for the Colorado Supreme Court to address the issue of wrongful discharge in violation of public policy, which has not occurred for a number of years. 

Lastly, the court rejected Ms. Jaynes’ attempt to overturn her discharge based on language in the Hospital’s employee handbook and policies.  It found that the handbook had an appropriate disclaimer, and that the Hospital’s policies did not create any type of enforceable right or contract upon which Ms. Jaynes could rely to challenge her termination.  Jaynes v. Centura Health Corp., 2006 WL 1171858 (Colo. Ct. App. May 4, 2006).

Owens vetoes HB 06-1193

Around the same time of this decision, Governor Owens vetoed a bill that would have prevented any form of disciplinary action against health care workers for making a “good faith” report regarding patient safety or quality of patient care, so long as the report was made “without malice or consideration of personal benefit.”  While the bill apparently was intended to ensure a free-flow of information to protect patients and improve patient care, the wording was so broad that even the mildest form of discipline (e.g., a verbal “admonishment”) could have triggered a lawsuit.  Although the bill was vetoed, the proposed legislation received enough support to make it to the Governor’s desk, so the issue is likely far from over.   
Significance of Decision

According to this decision, employees cannot rely on private codes or guidelines, or broad statements of public policy contained in statutes, to state a claim for wrongful discharge in violation of public policy.  But beware: the Colorado Supreme court might address the issue and reach a contrary result.  Therefore, before terminating an employee, be sure you have reviewed all the relevant information and issues.  Also, even for “at-will” employees, make sure you are in a good position to defend your decision (e.g., with appropriate documentation of performance issues) if called upon to do so in response to a wrongful discharge claim. 

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