Maine High Court Reinstates Whistleblower Claim of Nurse Allegedly Fired for Testimony
By Mary Anne Pazanowski
A nurse who claimed she was fired for testifying against a Maine hospital in a medical malpractice action produced sufficient evidence to allow a jury to decide whether the hospital’s alleged legitimate reason for terminating her was pretextual, the state’s highest court ruled March 21 (Trott v. H.D. Goodall Hosp. , Me., No. Yor-12-213, 3/21/13).
The Maine Supreme Judicial Court reversed summary judgment for H.D. Goodall Hospital, finding that its actions leading up to Claire Trott’s discharge suggested that it had not, as it claimed, fired her for falsifying a patient’s medical records, but instead had fired her for testifying on behalf of the medical malpractice plaintiff.
The court emphasized that summary judgment in an employment retaliation action is proper only where there is no evidence presented that would convince a jury to find for the plaintiff.
Discharged for Suggesting Malpractice?
Trott was a nurse at Goodall for more than 19 years. For most of that time, she received positive employment reviews. In October 2008, however, Trott was told that she needed improvement in the areas of documentation and medication administration. In January 2009, the hospital re-evaluated Trott and increased her salary based upon her improvement in these areas.
Prior to the performance evaluations, in December 2007, a patient died during Trott’s shift. The nurse told the patient’s family that his death could have been caused by a morphine overdose. The family later filed a wrongful death lawsuit against the hospital.
In February 2009, Trott was deposed in the wrongful death lawsuit. While she was being prepared for the deposition, the hospital’s attorney indicated that her remarks to the patient’s family were to blame for the action. During the deposition, the family’s attorney confronted Trott with records contradicting her testimony as to the patient’s final hours. Trott, according to the court, had never seen the records and was at a loss as to how to explain the discrepancy. She suggested that she had accidentally entered the wrong information into the electronic medical records system, resulting in an improper medical record entry.
The day after Trott signed her deposition testimony, the hospital terminated her on the ground that the medical record referred to in the deposition constituted the falsification of a patient medical record–a terminable defense under the hospital’s disciplinary policy.
Whistleblower Law Invoked
Trott sued Goodall, alleging that she was terminated in violation of Maine’s whistleblower protection law (Me. Rev. Stat. § 833(1)(C)), which prohibits an employer from discriminating against an employee for being requested to participate in a court action.
The court found that Trott had been requested to participate in a court action–the deposition–and that she suffered an adverse employment action. The only issue, then, was whether there was a causal connection between the two.
To determine causation in an employment discrimination action, the court applied the three-part McDonnell Douglas balancing test. It found that Trott met her initial burden under this test by producing evidence that she was discharged for her participation in the deposition, given the close temporal proximity between her testimony and her discharge.
The court also found that Goodall met its burden of producing evidence that it had a legitimate nondiscriminatory reason for firing Trott–her alleged falsification of the patient’s medical records. This conduct, the court said, constituted a terminable offense.
Unlike the district court, however, the state high court found that Trott carried her burden of production on the issue of whether the hospital’s explanation for its action was merely pretextual. Summary judgment at this stage, the court said, is improper absent a total failure of proof. Where the evidence creates credibility issues or is merely circumstantial, summary judgment rarely should be granted, the court said.
Trott produced evidence from which a jury reasonably could determine that the hospital’s explanation for her discharge was pretextual, the court found. First, it said, there was evidence that Trott was “blindsided” by the medical records at the deposition. A reasonable jury could conclude from this that Trott was confused and struggling to explain the discrepancy, and that she did not actually admit to falsifying the patient’s medical records, it found.
Second, the court said, Trott produced evidence that some hospital administrators had told her the day after her deposition that they did not believe she deliberately falsified the medical records. A reasonable juror could conclude from this evidence that the hospital believed Trott had made a negligent error, which would contradict its position that she deliberately falsified the record, the court found.
Finally, Trott produced evidence that the hospital, shortly before the deposition, re-evaluated her recordkeeping skills and determined that she had made improvements in this area, the court said. This contradiction suggested that a jury could find that the hospital was trying to “beef up its charge” against Trott to conceal the real, unlawful reason why it discharged her.
Justice Jon D. Levy wrote the opinion. Justice Warren M. Silver, joined by Justice Joseph M. Jabar, wrote a concurring opinion in which he argued that courts should not use the McDonnell Douglasbalancing test in employment discrimination actions under Maine law. Silver said he concurred because he believed the court reached the right conclusion in this case.
Guy D. Loranger of Nichols Webb & Loranger in Saco, Maine, represented Trott. Katherine I. Rand and Michelle Y. Bush of Pierce Atwood in Portland, Maine, represented Goodall.
By Mary Anne Pazanowski
Text of the opinion is available at http://about.bloomberglaw.com/blaw2/files/2013/03/trott.pdf.