TEXAS COURT OF APPEALS, THIRD DISTRICT, AT
AUSTIN
═══════════════════════════
ON MOTION FOR REHEARING
═══════════════════════════
NO. 03-03-00582-CV
Britton Cherish Walters, Appellant
v.
Columbia/St.
David’s Healthcare System, L.P.; Hospital Internists of Austin,
P.A.;
Steven Todd
Cole, D.O.; and Louis J. Lux, M.D., Appellees
FROM THE DISTRICT COURT OF TRAVIS
COUNTY, 345TH JUDICIAL DISTRICT
NO. GN303043, HONORABLE PATRICK O. KEEL, JUDGE PRESIDING
M E M O
R A N D U M O P I N I O N
Our
opinion and judgment issued on March 17, 2005, are withdrawn, and the
following opinion is substituted.
Appellant
Britton Cherish Walters brought suit against St. David’s Healthcare
System, L.P., Dr. Steven Todd Cole, Dr. Louis J. Lux, and the Hospital
Internists of Austin, P.A.
Walters, a registered nurse, alleged a violation of the anti-retaliation
statute
against St. David’s, defamation and intentional infliction of emotional
distress against St. David’s and HIA, and tortious interference with a
contract against HIA. Both St. David’s and HIA moved for summary judgment.
The district court granted summary judgment in favor of St. David’s and
HIA. Walters appeals, urging in seven issues that the summary judgment
should be reversed on the grounds that she produced sufficient evidence to
support each of her claims against St. David’s and HIA, and that the
appellees did not conclusively establish any affirmative defenses. Finding
that St. David’s and HIA demonstrated their entitlement to summary
judgment as a matter of law, and that Walters failed to raise a fact issue
on a material matter, we affirm the summary judgment.
BACKGROUND
Walters
began working as a nurse at the South Austin Hospital location of St.
David’s on February 6, 2001. The majority of the patients at South Austin
were considered “HIA patients” because their treatment was assigned to
physicians belonging to the HIA practice group, which included Drs. Cole
and Lux. Other physicians, who were not members of the HIA practice group
and were not assigned to treat HIA patients, also worked at South
Austin.
Walters
and Cole became romantically involved a few months after she started
working at the hospital. They dated from May to August 2001. According to
Walters, their relationship ended on bad terms. Shortly after terminating
her relationship with Cole, Walters began dating Daniel DiBona, a non-HIA
physician who also worked at the hospital. After dating for approximately
one month, Walters and DiBona moved in together and were residing together
at the time this suit was brought.
On
the evening of January 3, 2002, Walters was assigned to care for an HIA
patient who had undergone a heart catheterization earlier that day. Cole
was assigned as the “on call” physician for the patient. Based on the
patient’s symptoms, Walters became concerned that the patient was
suffering a stroke. Walters called Cole around 9:30 p.m. and expressed her
concerns. Cole decided not to come into the hospital, but he ordered that
a CT scan be performed and that certain medications, including Narcan and
Lovenox, be administered to the patient. Cole also instructed Walters to
monitor the patient’s vital signs and blood pressure. Walters complied
with Cole’s instructions, and a radiologist performed the CT scan. The
radiologist reported back to Cole that the results of the scan were
inconclusive because they showed “no acute abnormality,” which only ruled
out the possibility of a hemorrhage.
Walters
disagreed with Cole’s decision to not come to the hospital. Although
Walters testified at her deposition that she had no trouble contacting
Cole, she testified that he behaved “drunk” and “belligerent” on the
telephone. Walters therefore sought guidance from DiBona, who was not
assigned as a treating physician for this patient and was not a member of
the HIA practice group.
Walters
testified that she called DiBona and posed a “medical scenario” to him by
describing the patient’s age and symptoms without revealing the patient’s
name. Walters testified that she told DiBona, “I have a patient that came
back from a heart catheterization only a few hours later. She’s
nonresponsive to pain on one side. She’s nonverbal. Her family says it’s
different. Does this seem like a stroke to you?” Walters testified that
DiBona confirmed her suspicions by responding that, “[y]es, this is a
stroke that she is presenting with, more than likely.” Walters
acknowledged that her conversation with DiBona pertained to the possible
medical treatment options that were available for the patient. When asked
during her deposition whether she and DiBona discussed what medications
would be appropriate for this patient, Walters testified that DiBona
“mentioned two possibilities . . . two different types of blood thinners.
. . . They were Heparin and Lovenox.” Walters also acknowledged that, when
she called DiBona, she knew he was not assigned as a treating physician
for the patient.
At
approximately 11:30 p.m., after talking to DiBona, Walters called the
patient’s treating cardiologist, Dr. Erol Ozdil. Walters testified that
she told Ozdil she had run the medical scenario by another doctor who
agreed the patient’s symptoms sounded like a stroke. Walters also
testified that she asked Ozdil whether Heparin or Lovenox would be the
more appropriate medicine for this patient. Ozdil agreed to come to the
hospital and evaluate the patient. It was later confirmed that the patient
had suffered a stroke.
Cole
testified that, at some point the next day, January 4, Ozdil reported back
to him about the patient’s condition and told him that Walters had
conferred with another physician about the patient’s treatment. This
information prompted Cole to review Walters’s nursing notes on the
patient. He discovered that Walters had included a comment in her notes
about Cole’s decision to not come to the hospital on the night of January
3. Cole discussed the situation with his supervisor, Dr. Lux. Cole and Lux
then went to see Carole McGhee, the Director of Nursing at St. David’s
South Austin Hospital. The doctors testified that their purpose for
meeting with McGhee was to express their concerns about Walters revealing
confidential patient information to a non-treating, non-HIA physician.
Because they considered Walters’s conduct to have violated the hospital’s
confidentiality policy, Cole and Lux requested that Walters be permanently
restricted from treating HIA patients. McGhee expressed that she “could
not accommodate that request on a permanent basis given scheduling
considerations,” but she agreed to temporarily restrict Walters from
treating HIA patients pending an investigation.
As
McGhee stated in her affidavit, following her meeting with Cole and Lux,
McGhee discussed the situation with South Austin’s Chief Nursing Officer
and with the Director of Nursing Practice, who was responsible for the
peer review program. McGhee then decided that “Walters should receive a
written counseling and that her conduct should be referred to the
Hospital’s Peer Review Committee for a formal determination regarding the
patient’s confidentiality issue.”
Walters
testified that McGhee called her on January 4 and told her that she
“definitely need[ed] to come in” for a meeting. Walters testified that she
told McGhee during their telephone conversation that Cole “was a drunk and
that [] was why he didn’t come in to see patients.”
Later that day, McGhee met with Walters and explained that Cole and Lux
had reported that Walters breached the confidentiality policy by
discussing an HIA patient’s treatment with a non-treating physician.
Walters admitted that, on the night of January 3, she called DiBona and
described the patient’s symptoms, and that DiBona said the patient was
most likely having a stroke. McGhee prepared a peer review investigation
form, titled “South Austin Medical Center Counseling Statement,” on which
she noted that Walters “spoke with a physician who was not on a patient’s
case regarding possible medical treatment options for that patient. (She
did not specifically identify the patient by name or age
).” Walters agreed that McGhee’s notation was an “accurate summary” of
her statement.
Given
the doctors’ report and Walters’s admissions, McGhee concluded that
Walters “reveal[ed] information regarding the patient and the patient’s
medical condition which would have rendered it easy for Dr. DiBona to
determine the patient’s identity given his frequent presence at the
hospital.” McGhee believed that Walters’s actions possibly violated the
hospital’s confidentiality policy, which Walters signed when she started
working for St. David’s. The policy states, in relevant part:
I
understand that I may not discuss confidential patient information except
to the extent that performance of my job requires it. Otherwise, I will
not read, discuss, or release any information contained within the medical
record of any patient without proper authorization from the patient or the
patient’s legal representative. I will release information contained
within patient medical records only with proper authorization by South
Austin Hospital. . . . In the event that I breach any of the above
statements, I understand I will be subject to immediate dismissal. . .
.
Walters also signed a confidentiality
agreement stating that,
[a]s
a condition of employment, I agree to not divulge to any unauthorized
persons, any confidential information obtained from observations,
correspondence, personal records, clinical materials, and/or any other
sources. . . . I understand that any violation of this confidentiality
agreement is very serious and warrants disciplinary action.
McGhee noted on the
counseling statement that, “[b]ecause of [Walters’s] possible breach of
confidentiality, I am referring this situation to Nursing Peer Review for
evaluation and recommendation.” McGhee informed Walters of this decision
and gave her the counseling statement, which afforded Walters the
opportunity to submit any additional written comments. McGhee instructed
Walters to fill out, sign, and return the form. Walters testified that she
never complied, despite the fact that McGhee reminded her on three
subsequent occasions.
McGhee
also explained during their January 4 meeting that, for a temporary
period, Walters would not be assigned to HIA patients. Although Walters’s
assignments were more limited after January 4, Walters testified that she
was in fact assigned to care for HIA patients from January 5 until her
last day of work on February 6; that she never saw a formal, written order
restricting her from HIA patients; and that she never received further
instruction from McGhee to not care for HIA patients.
On
January 15, Walters called McGhee and told her that she was going to quit
because she “was feeling pressure to the point where [she] couldn’t
concentrate on patient care.” Walters also told McGhee that “I knew this
wasn’t her fault” because “she was also under stress.” In response, McGhee
explained that Walters would not be able to collect her accrued vacation
pay unless she worked at least one full year. Accordingly, Walters
submitted a written letter to McGhee on January 18, stating that her
resignation would be effective February 6, 2002, exactly one year from the
date Walters began working at the hospital. During the last three weeks of
Walters’s employment, she missed at least seven shifts, calling in sick on
some days and claiming to have been “stuck” out of town on the other days.
Walters quit work on February 6, before the peer review process was
completed. Walters testified that the correct sequence of events was that
she announced her resignation and then found out that “because [she
was] leaving, peer review had been dropped;” it was “not the other way
around.” (Emphasis added.)
Walters
thereafter sued St. David’s, as well as Cole, Lux, and the HIA practice
group, asserting claims for defamation, retaliation, intentional
infliction of emotional distress, and tortious interference with a
contract. St. David’s and HIA moved for summary judgment on each of
Walters’s claims, asserting both traditional and no-evidence grounds for
summary judgment, and attaching supporting evidence. See Tex. R.
Civ. P. 166a(c); 166a(i). The district court granted summary judgment in
favor of St. David’s and HIA without specifying a ground for its order.
Walters appeals the summary judgment, claiming that she satisfied her
burden as the nonmovant by producing more than a scintilla of evidence to
create a fact issue on at least one element of each claim.
STANDARD OF
REVIEW
We
review the district court’s grant of summary judgment de novo.
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.
2004). When a movant presents both traditional and no-evidence grounds for
summary judgment, and the district court does not specify the ground upon
which the motion is granted, as here,
we must affirm the summary judgment if any of the theories presented to
the trial court and preserved for appellate review are meritorious.
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
217 (Tex. 2003). When reviewing a summary judgment, we take as true all
evidence favorable to the nonmovant, and we indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. Nixon v. Mr.
Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).
A
defendant who moves for summary judgment under Rule 166a(c) is entitled to
have its motion granted if it conclusively negates at least one of the
essential elements of the plaintiff’s cause of action or if it
conclusively proves each element of its affirmative defense, thereby
showing that it, as the movant, is entitled to judgment as a matter of law
because no genuine issues of material fact remain.
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.
1999). The defendant must support its motion with proper summary judgment
evidence. Tex. R. Civ. P. 166a(c). Only if the defendant meets its burden
does the burden shift to the plaintiff, as the nonmovant, to establish
that a genuine issue of material fact remains. Id.
The
defendant’s burden in moving for summary judgment under Rule 166a(i) is
less strenuous. The defendant must establish that “after adequate time for
discovery . . . there is no evidence of one or more essential elements of
a claim or defense on which an adverse party would have the burden of
proof at trial.” Id. 166a(i); Fort Worth Osteopathic
Hosp., Inc. v. Reese, 148 S.W.3d 94, 98 (Tex. 2004). The burden
then shifts to the plaintiff, in its attempt to defeat the summary
judgment motion, to produce sufficient evidence to raise a genuine issue
of material fact supporting the disputed issue. Forbes Inc. v. Granada
Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). The
plaintiff must produce more than a scintilla of probative evidence,
meaning that it must not be “so weak as to do no more than create a mere
surmise or suspicion of a fact.” King Ranch v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003).
ANALYSIS
To
support each of her four causes of action—retaliation, defamation,
intentional infliction of emotional distress, and tortious interference
with a contract—Walters relies on essentially the same allegations.
Walters claims that, after reporting that Cole abused controlled
substances and acted negligently, she suffered adverse employment actions
at the hospital, such as being restricted from HIA patients and being the
subject of rumors. She claims to have felt “threatened” and “unsupported”
by hospital managers who supported the peer review process, but she also
claims that it was “malicious” for the hospital to have failed to complete
her peer review after she resigned. Walters asserts that her workplace
conditions became so stressful that she was constructively discharged. She
blames this series of events on the doctors, for “falsely” reporting to
McGhee that Walters violated the confidentiality policy, and on the
hospital for “ratifying” the doctors’ report. Walters asserts that these
actions amounted to “extreme and outrageous” conduct by the hospital and
the doctors.
Both
St. David’s and HIA assert that there is a lack of evidence to support at
least one element of each cause of action, and both raise affirmative
defenses. Although we will address each of Walters’s causes of action
independently, we first turn to the appellees’ assertion that Walters’s
entire case fails because the report made by Cole and Lux to McGhee was
true.
Violation of Confidentiality
Policy
The
specific statement by Cole and Lux, which Walters claims to be false, is
that “Walters did not follow hospital protocol and repeatedly shared
confidential patient information with a non-treating physician.” If it was
true
that Walters repeatedly violated the hospital’s confidentiality policy,
then it was not defamatory for the doctors to have reported this to
McGhee, nor improper for the hospital to have disciplined Walters based on
it. It follows that St. David’s actions of referring Walters to peer
review and restricting her treatment of HIA patients would be justified as
legitimate business decisions and protected by the qualified immunity
attached to peer review actions. Further, the making of or acting upon a
true report could not be considered “malicious,” “extreme and outrageous,”
or “tortious.” Thus, if the doctors’ report is true, then Walters cannot
create a genuine issue of material fact on any element of her claims for
retaliation, defamation, intentional infliction of emotional distress, or
tortious interference with a contract.
Walters’s
own testimony establishes that she “did not follow hospital protocol and
repeatedly shared confidential patient information with a non-treating
physician.” Walters characterized DiBona as a “human reference book” who
was “very accessible” to her. She explained that, if she was working at
the hospital and a medical situation arose for which she did not know the
answer, she would frequently call DiBona and ask him about “real life
scenarios that [she] was facing at the hospital . . . even though the
scenarios dealt with patients who were not his patients.” Walters
testified that she did this approximately once a week for at least six
months. Walters agrees that she posed such a medical scenario to DiBona on
the night of January 3, when she called him to inquire about the “possible
medical treatment options” for the heart catheterization patient. However,
Walters asserts that she never revealed the name of a patient about whom
she was inquiring. Walters also testified that she downloaded, printed,
and took home documentation from patients’ medical records without
permission. She acknowledged doing this “typically . . . at the end of
each work day.”
Walters
urges that her frequent discussions with DiBona did not violate the
confidentiality policy because she did not disclose the patients’ names.
Walters additionally urges that her actions on January 3 were not in
violation of the policy, due to the policy’s exception allowing nurses to
reveal confidential information “to the extent that performance of [their]
job requires it.” Based on Cole’s decision to not come into the hospital
that night, Walters claims it was necessary for her to call DiBona, a
non-treating physician, and discuss the treatment options for the heart
catheterization patient. Additionally, Walters claims she did not violate
the policy by taking home documentation of patients’ medical records
because she was only interested in the portions containing her own
notes.
The
hospital’s confidentiality policy, which Walters signed upon accepting
employment at St. David’s, expressly prohibits revealing “any information
contained within the medical record of any patient without proper
authorization.” It is undisputed that Walters discussed the treatment of a
patient with a non-treating physician, including such details as the
patient’s diagnosis and appropriate medications. Nothing in the
confidentiality policy or the confidentiality agreement allows disclosure
if the patient’s name is omitted. Walters also acknowledged that she
removed medical records from the hospital without authorization. Walters
provides no authority to show that the hospital permitted its staff to
remove a patient’s medical records for any purpose.
In
Texas, a patient’s medical information is generally considered to be
“confidential,” and is therefore broadly protected, with only a few,
narrowly defined exceptions. The Texas Occupations Code states that any
“record of the identity, diagnosis, evaluation, or treatment of a patient
by a physician that is created or maintained by a physician is
confidential.” Tex. Occ. Code Ann. § 159.002(b) (West 2004); see also
id. § 159.004 (West 2004) (listing specific exceptions to
confidentiality, not including “omission of patient’s name” or “for one’s
own interest”). Similarly, the Texas Health and Safety Code protects a
patient’s “health care information,” which is defined as “information
recorded in any form or medium that identifies a patient and relates to
the history, diagnosis, treatment, or prognosis of a patient.” Tex. Health
& Safety Code Ann. § 241.151(2) (West 2001). Further, the Corpus
Christi court has held that health care information does not lose its
confidential status simply because a patient’s identifying information is
redacted. In re Columbia Valley Reg’l Med. Cent., 41 S.W.3d 797,
800 (Tex. App.—Corpus Christi 2001, no pet.) (confidentiality not limited
to cover only identity of patient). Thus, the information Walters revealed
to DiBona was confidential, even without the patient’s name.
Moreover,
Walters’s actions on the night of January 3 do not fall within the
policy’s exception for revealing confidential information “to the extent
that performance of [a nurse’s] job requires it.” Walters does not dispute
that, if a medical problem arises, the nurse should first contact the
patient’s treating physician. Walters complied with this by calling Cole,
who gave treatment orders for the patient. Walters also does not dispute
that, if additional help is needed, other treating physicians are
available and should be contacted. Walters also complied with this by
contacting Ozdil, the patient’s treating cardiologist, who came to the
hospital and treated the patient.
Although
Walters was aware of other treating physicians who were available to
assist her and she understood that hospital protocol only permits a
patient’s healthcare information to be revealed to authorized persons, she
claims that, for the welfare of the patient, she was “required” to discuss
the patient’s medical diagnosis with DiBona, in order to confirm whether
she should contact another physician. This claim finds no merit in the
record. The patient’s health and safety would have been more aptly
protected had Walters immediately called Ozdil when Cole informed her that
he was not coming to the hospital, rather than first calling DiBona to
discuss the situation. As a trained nurse, Walters should have had the
ability to determine whether to call another treating physician, such as
Ozdil, without relying on the advice of a third party. On these undisputed
facts, the performance of Walters’s job did not require her to obtain an
opinion from a non-treating physician about the patient’s diagnosis or
treatment.
Thus,
even when viewed in a light most favorable to Walters, the evidence
establishes that the report by Cole and Lux—“that Walters did not follow
hospital protocol and repeatedly shared confidential patient information
with a non-treating physician”—was true. Walters failed to present a
scintilla of evidence to create a genuine issue of material fact about the
veracity of their report. If anything, her testimony supported the
appellees’ affirmative defense of truth. The truth of their report
supports an affirmance of the summary judgment on each of Walters’s
claims, either by establishing an affirmative defense or negating the
existence of a fact issue. We will, nevertheless, discuss each of her
claims.
Defamation
Walters
claims in her fourth and fifth issues that HIA, Cole, and Lux defamed her
by falsely stating that she violated the hospital’s confidentiality
policy, and that St. David’s ratified these defamatory statements by
limiting Walters’s assignments to HIA patients and by allowing the doctors
to mistreat her at work. To recover for defamation, a private plaintiff
must prove that the defendant (1) published a statement, (2) that was
defamatory to the plaintiff, (3) while acting negligently as to the truth
of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568,
571 (Tex. 1998). A statement is defamatory if it tends to injure one’s
reputation, exposing her to public hatred, contempt, and ridicule. Tex.
Civ. Prac. & Rem. Code Ann. § 73.001 (West 1997). In defamation suits
brought by private individuals, truth is an absolute defense, upon which
the defendant has the burden of proof. Randall’s Food Mkts.,
Inc. v. Johnson, 891 S.W.2d 640, 646 & n.6 (Tex. 1995).
We
hold that the appellees satisfied their burden of conclusively
establishing the truth of the allegedly defamatory statements. See
id. at 644. Walters’s fourth and fifth issues are overruled.
Retaliation
In
her second issue, Walters claims that St. David’s retaliated against her
in response to four reports she allegedly made about Cole’s substance
abuse and/or his negligent care of a patient. The health and safety code
states that
[a]
hospital . . . may not suspend or terminate the employment of or
discipline or otherwise discriminate against an employee for reporting to
the employee’s supervisor, an administrator of the facility, a state
regulatory agency, or a law enforcement agency a violation of law,
including a violation of this chapter, a rule adopted under this chapter,
or a rule adopted by . . . the Texas Commission on Alcohol and Drug
Abuse.
Tex. Health &
Safety Code Ann. § 161.134(a) (West 2001). Walters asserts that she is
entitled to a rebuttable presumption of retaliation because she suffered
adverse employment actions within sixty days of making a report. See
id. § 161.134(f) (West 2001).
St.
David’s contends that there is no evidence to support a causal link
between any report allegedly made by Walters and any adverse employment
action taken by the hospital. The hospital also urges that Walters is not
entitled to a presumption of retaliation because the hospital did not take
any adverse actions against her and because, even if the presumption
applied, it is overcome by evidence that Walters violated the hospital’s
confidentiality policy, which gave St. David’s a legitimate business
reason for any employment decisions it made. See Thomas v. Clayton
Williams Energy, Inc., 2 S.W.3d 734, 739 (Tex. App.—Houston
[14th Dist.] 1999, no pet.) (proof of legitimate reason rebuts presumption
of retaliation).
The
four reports that Walters claims to have made about Cole’s substance abuse
and/or his negligent care of a patient were: (1) to Dennis Tweety of the
Physician’s Health and Rehabilitation division of the Texas Medical
Association in fall 2001, (2) in her nursing notes on the night of January
3, (3) to McGhee during their January 4 telephone conversation, and (4) to
hospital administrator Mark Bethel on January 11. Walters asserts that,
because of these reports, St. David’s retaliated against her by
restricting her from HIA patients, referring her to peer review, not
completing the peer review following her resignation, allowing her to
become the subject of “rumor mongering,” failing to prevent Cole from
physically confronting her at work, and generally making her work
conditions so intolerable that she was constructively discharged.
Walters’s
own testimony shows the absence of a causal link because it establishes
that St. David’s did not have knowledge of any actionable report prior to
making any employment decision about Walters. First, Walters’s report to
Tweety at the TMA was a verbal report, and she testified that she never
told anyone at the hospital about it. She adduced no evidence that anyone
at the hospital had knowledge of the report. Second, Walters’s nursing
notes do not come within the scope of the statute’s definition. See
Tex. Health & Safety Code Ann. § 161.134(a). The notes simply state
that “I asked Dr. Cole to come assess [patient]. Dr. Cole stated that he
was not coming to assess [patient], but wanted Narcan to be given . . .
[and] have CT of head, with results called to him.” This does not
constitute a report “to the employee’s supervisor, an administrator of the
facility, a state regulatory agency, or a law enforcement agency” about
any violation of law or adopted rule. See id. Third, Walters’s
statement to McGhee during their January 4 telephone conversation does not
support her retaliation claim because the evidence shows that, by this
time, the HIA doctors had already reported Walters’s violation, and McGhee
had already decided to refer Walters to peer review; McGhee summoned
Walters to her office during this conversation. Similarly, Walters’s
January 11 report to administrator Bethel occurred after the hospital took
the actions about which Walters complains, and therefore does not support
her claim for retaliation.
There
is no evidence that the hospital or the doctors were otherwise aware of
any reports made by Walters. She confirmed that she never provided anyone
at the hospital with a written report about Cole’s alleged substance abuse
and/or his negligent treatment of patients. She testified that the only
written complaint she lodged against Cole was to the State Board of
Medical Examiners on February 11, 2002. Because this report was made after
Walters’s resignation from the hospital and, hence, was subsequent to any
adverse action taken against Walters, it provides no evidence of a causal
link between a report and a retaliatory action.
Any
adverse actions that St. David’s took against Walters were not retaliatory
because they were justified, as legitimate business decisions, by
Walters’s violation of the confidentiality policy. See Thomas,
2 S.W.3d at 739. When an employer has knowledge that an employee
violated workplace policies, the employer is entitled to investigate the
allegations and take appropriate disciplinary actions. See Johnson v.
Merrill Dow Pharm., Inc., 965 F.2d 31, 34 (5th Cir. 1992). As
set forth above, Walters’s testimony confirmed the truth of the doctors’
report that she had violated hospital protocol by discussing a patient’s
treatment with a non-treating physician. Thus, St. David’s was justified
in temporarily limiting Walters’s assignments to HIA patients and in
referring her to the nursing peer review process.
There
is also no evidence in the record to support the other “retaliatory”
actions Walters claims to have suffered. Walters’s own actions caused the
peer review to not be completed; she testified that she never returned the
counseling statement as requested by McGhee and that she was absent
several times during her last few weeks of work, when the peer review
process was ongoing. Walters further testified that she understood the
reason the peer review process ended was because she resigned. Walters
provides no legal authority to support her claim that the hospital is
obligated to complete peer review after an employee quits. Conversely, St.
David’s points to the peer review policy, which states that the procedure
applies to “current employees.” Thus, Walters was not retaliated against
when, following her resignation, the hospital did not conclude her peer
review.
Walters
claims that the hospital allowed her to become the subject of “rumor
mongering” for a period of weeks. Walters testified that she heard “hushed
whispers talked about me when I walked into a room” and that she
“believed” another nurse told co-workers that Walters had engaged in
sexual activity with Cole and DiBona on the hospital’s premises. But
Walters testified that this rumor could not be attributed to any of the
appellees, and no other witness testified to the existence of rumors.
Walters also claims that Cole and Lux spread rumors about her by
requesting that she not be assigned to care for HIA patients. Because the
doctors and the hospital were justified in restricting Walters from HIA
patients pending the investigation, this claim does not evidence a
violation of section 161.134(a). The record does not support Walters’s
claim that “rumor mongering” occurred, or if it did, that it was
actionable, retaliatory conduct.
Walters
claims that one night at the hospital, following the January 3 incident,
Cole confronted her, pinned her against the wall, “puffed up, got bigger,
and moved closer,” and then said “he didn’t have a problem with me taking
care of HIA patients, [but] his bosses did.” Cole testified that he told
Walters his bosses did not want her assigned to HIA patients, but claims
he was sitting behind the nurses’ station when she approached him in a
“heightened emotional state,” asking if he “had a problem with her nursing
skills.” Cole stated that the encounter was “tense” and “brief.”
Taking Walters’s account of the confrontation as true, it does not
support her retaliation claim because she testified that she never
reported this incident to anyone at St. David’s or HIA, and that she was
not aware of anyone who witnessed the event. Cole also testified that he
did not recall anyone else being present at the time. Without notice that
the alleged confrontation occurred, St. David’s could not have retaliated
against Walters by failing to act on it.
Regarding
her claim of intolerable work conditions, Walters testified that McGhee
reprimanded her, along with other nurses, for wearing scrubs from
different hospitals and for chewing tobacco at work. Also, Walters
testified that she felt unsupported at work because other nurses left
positive notes for each other on a break-room message board, and she did
not remember having any posted about her. She cites no authority to
support her claim that these actions were “retaliatory.”
Relying
on University of Texas Medical Branch v. Hohman, Walters urges that
such proof is sufficient to survive summary judgment on her retaliation
claim. 6 S.W.3d 767, 780 (Tex. App.—Houston [1st Dist.] 1999, writ dism’d
w.o.j.). The nurses in Hohman asserted that their former employer
retaliated against them in numerous ways, including reprimanding,
threatening, suspending, and humiliating them. Id. at 780 n.8. The
Hohman court reversed and remanded the summary judgment, based on
its finding that a fact issue remained on the employer’s “official
immunity” defense, without reaching the sufficiency of the nurses’
evidence. Id. at 780. Thus, Hohman does not support
Walters’s claim that she has adduced sufficient evidence of “intolerable
conditions” to survive summary judgment on her retaliation claim.
Walters’s proof does not amount to more than mere surmise or suspicion and
is, therefore, insufficient to raise a genuine issue of material fact.
King Ranch, 118 S.W.3d at 751.
Because
Walters failed to establish a causal link between any report she made and
any adverse employment action the hospital took, and because the hospital
satisfied its burden of rebutting any presumption of retaliation with
proof of a legitimate reason for its actions, Walters’s second issue is
overruled.
Intentional Infliction of Emotional
Distress
Walters
claims in her third and sixth issues that she suffered intentional
infliction of emotional distress based on the doctors’ report that she
violated hospital protocol, St. David’s decision to limit her care of HIA
patients, St. David’s allowance of rumor mongering, and the physical
confrontation she allegedly had with Cole. To recover damages for
intentional infliction of emotional distress, a plaintiff must establish
that: (1) the defendant acted intentionally or recklessly; (2) the
defendant’s conduct was extreme and outrageous; (3) the defendant’s
actions caused the plaintiff emotional distress; and (4) the resulting
emotional distress was severe. Hoffman-La Roche, Inc. v.
Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004).
St.
David’s and HIA challenge that Walters failed to produce a scintilla of
evidence that they acted in an extreme and outrageous manner. Conduct
should not be labeled as “extreme and outrageous” unless it goes beyond
all possible bounds of decency, such that it is “atrocious and utterly
intolerable in a civilized community.” Id. Ordinary employment
decisions may be unfair or unpleasant, but they do not rise to the level
of being extreme and outrageous, especially in an at-will employment
context. See id. at 449. Thus, it is “only in the most unusual of
circumstances,” if a plaintiff can show some conduct outside the realm of
ordinary employment actions, that a claim for intentional infliction of
emotional distress will lie against an employer. GTE Southwest,
Inc. v. Bruce, 998 S.W.2d 605, 612-13 (Tex. 1999).
We
have already addressed that the doctors’ report regarding Walters’s
violation of the confidentiality policy was true, and that St. David’s was
justified, based on this report, in referring Walters to peer review and
limiting her treatment of HIA patients pending an investigation. Also,
Walters testified that the restriction was only temporary, and that she in
fact cared for HIA patients between January 5 and her resignation on
February 6. Thus, these employment actions by St. David’s and HIA do not
constitute extreme and outrageous conduct.
We
have similarly addressed the record’s lack of support for Walters’s claim
that she became the subject of rumors at the hospital. Because Walters
failed to produce a scintilla of evidence to show that such rumors
occurred or that they were attributable to appellees, these claims provide
no evidence of conduct by the appellees that was “beyond all possible
bounds of decency, atrocious and utterly intolerable in a civilized
community.” See Zeltwanger, 144 S.W.3d at 445.
Assuming
Cole physically confronted Walters as she testified, this evidence, while
disturbing, does not rise to the level of extreme and outrageous conduct
by either HIA or the hospital. Walters cites American Medical
International, Inc. v. Guirintano as supporting authority, but
that case is distinguishable from the instant one. 821 S.W.2d 331 (Tex.
App.—Houston [14th Dist.] 1991, no writ). In Guirintano, a hospital
administrator claimed that a group of doctors intentionally inflicted
emotional distress upon him by verbally and physically attacking him at a
cocktail party; he claimed that the doctors jumped all over him, raised
their voices, expressed anger, cursed, directed racist comments at him,
threatened him, and ultimately blamed this confrontation on the
administrator, using it as a basis to have him fired. Id. at
341-42.
The
conduct alleged in Guirintano was more severe and prolonged than
the isolated incident alleged by Walters. Even still, the court found that
the cocktail-party incident alone was insufficient to prove extreme and
outrageous behavior. Id. at. 342. Rather, the court held that the
proof was sufficient based on cumulative evidence that the doctors engaged
in a “conspiracy . . . to intentionally put Giurintano in confrontational
situations and use his responses to these confrontations for the purpose
of opposing his appointment.” Id. Walters produced no such
evidence. Additionally, the standard of review in Guirintano was
different from this case. There, the court was bound to affirm a jury’s
finding of intentional infliction of emotional distress unless the doctors
proved that no reasonable person could have made that finding. Id.
at 343. Here, we must affirm the summary judgment in favor of HIA and St.
David’s unless Walters produces sufficient evidence to support her claim
that the appellees’ conduct was extreme and outrageous—a burden Walters
did not meet.
Because
Walters failed to satisfy her burden of producing a scintilla of evidence
to raise a genuine issue of material fact about whether St. David’s or HIA
intentionally inflicted emotional distress upon her, Walters’s third and
sixth issues are overruled.
Tortious
Interference with a Contract
In
her seventh issue, Walters claims that the HIA doctors tortiously
interfered with her employment contract by requesting that Walters be
restricted from HIA patients. To recover for tortious interference, a
plaintiff must prove: (1) an existing contract subject to interference,
(2) a willful and intentional act of interference with the contract, (3)
that proximately caused the plaintiff's injury, and (4) caused actual
damages or loss. Prudential Ins. Co. of Am. v. Financial Review
Servs., Inc., 29 S.W.3d 74, 77 (Tex. 1999).
Justification
is an affirmative defense to tortious interference if the defendant’s
actions were based on either the exercise of its own legal rights or on a
good-faith claim to a colorable legal right, even if that claim ultimately
proves to be mistaken. Id. at 80. A defendant who has a legal right
to interfere with the contract is privileged, regardless of his
motivations for acting. Id. Otherwise, the defendant must prove
that his actions were in good faith; but he need not prove that he
asserted a “legally correct” right, only that the right has a colorable
basis in the law. Ballantyne v. Champion Builders, Inc., 144
S.W.3d 417, 426-27 (Tex. 2004). However, if the defendant’s actions were
tortious in themselves, then the defendant is not privileged nor
justified, despite the existence of a legal right for his actions.
Prudential Ins. Co. of Am., 29 S.W.3d at 81.
HIA
urges that its doctors were justified in requesting that Walters’s
assignments to HIA patients be limited because Walters violated the
confidentiality policy and because the request was made in the patients’
best interests.
The Texas Occupations Code and the Health and Safety Code broadly protect
a patient’s medical information as “confidential.” See Tex. Occ.
Code Ann. § 159.002; Tex. Health & Safety Code Ann. § 241.151. It is
also well established in Texas that physicians owe a duty of care to their
patients and are obligated to protect a patient’s confidential
information. See Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81
(Tex. 1997) (“physician’s primary duty is to the patient”); see
also Tex Occ. Code Ann. § 159.002 (physician cannot disclose patient’s
confidential information without proper authorization and physician may
claim privilege of confidentiality on behalf of patient). Cole and Lux,
therefore, were justified in approaching hospital personnel to request
that Walters no longer be assigned to care for their patients, given their
concerns that Walters revealed their patients’ confidential medical
information to a non-treating physician. The doctors’ actions were not
defamatory, nor otherwise “tortious in themselves,” because their report
that Walters violated the confidentiality policy was true. Because HIA
conclusively established its affirmative defense of justification,
Walters’s seventh issue is overruled.
Qualified Privilege
In
response to all of Walters’s
claims, St. David’s asserts the affirmative defense of qualified
privilege, claiming that it is statutorily protected from any liability
arising out of an action related to the nursing peer review process. The
occupations code states that “a cause of action does not accrue for an
act, statement, determination, or recommendation made, or act reported,
without malice, in the course of peer review against . . . a hospital.”
Tex. Occ. Code Ann. §§ 160.010, 303.010(a)(2) (West 2004).
Walters
claims in her first issue that St. David’s is not entitled to this
immunity because the hospital acted with malice and because the peer
review was not completed. Actual malice has been defined as “ill will,
spite, evil motives, and purposely injuring another.” Texas Beef Cattle
Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996). An employer’s actions
that are based on a report of an employee’s wrongdoing, which the employer
reasonably believes to be true, cannot be labeled as “malicious.”
Randall’s Food Mkts., 891 S.W.2d at 647.
We
have already discussed that it was not retaliatory for St. David’s to
terminate the peer review process, given that Walters’s own
actions—failing to return the counseling statement, missing several days
of work at the end of her term, and resigning prior to the conclusion of
the peer review—were the reason that her review was not completed. Because
of this, and because there is no other proof of an evil motive or ill will
on behalf of St. David’s, it was not malicious for St. David’s to
terminate the peer review following Walters’s resignation. Further,
Walters claims that it was malicious for McGhee to include “false
statements” in her counseling statement, but Walters testified that she
considered McGhee’s notes to be an “accurate summary” of what Walters told
McGhee during their January 4 meeting. Walters also claims St. David’s
maliciously denied her “minimum due process” by “unilaterally dropping”
the peer review and by not affording her an opportunity to submit a
rebuttal statement. However, Walters testified that she understood the
process was terminated due to her resignation, and that she was provided
the counseling statement, which stated that she could submit any written
comments; she chose not to return it, despite McGhee’s repeated reminders
to do so.
There
is also no authority to support Walters’s claim that St. David’s was
obligated to complete the peer review process in order for the qualified
privilege to apply. Walters acknowledges that nothing in the occupations
code requires hospitals to proceed with or complete peer reviews of former
employees. Tex. Occ. Code Ann. §§ 160.101, 303.010. Walters claims,
however, that this obligation is inherent in the statute’s purpose. We
disagree. If the legislature had intended to hinge the qualified privilege
on a requirement that hospitals complete peer reviews, even after the
subject of the review resigned, it could have explicitly done so. The
“purpose of the statute is to foster a free, frank exchange among medical
professionals” about possible violations by their peers. Irving
Healthcare Sys. v. Brooks, 927 S.W.2d 12, 16 (Tex. 1996). Once a
hospital commences a peer review, it follows that the actions it has taken
continue to be shielded by the qualified privilege when the peer process
is not completed due to the employee’s actions. Finally, contrary to
Walters’s lack of authority, St. David’s points to the peer review policy
itself, which expressly states that it applies to “current employees.”
Because
St. David’s did not act with malice and because the qualified privilege
applies regardless of whether the peer review was completed, we hold that,
on these facts, St. David’s “actions, statements, determinations, or
recommendations” connected to Walters’s peer review are entitled to
immunity. Walters’s first issue is overruled.
CONCLUSION
Having
found that St. David’s and HIA conclusively demonstrated their entitlement
to summary judgment as a matter of law, and that Walters failed to raise a
fact issue on any material issue, we affirm the summary judgment in favor
of the appellees.
Jan
P. Patterson, Justice
Before Chief Justice
Law, Justices Patterson and Puryear
Affirmed
Filed: April 14,
2005 |