Nurse Acting Without Physician Approval Could Not Show Discrimination

By Jeffrey L. Rhodes May 4, 2016
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A nurse and case manager who, without physician approval, offered a patient intravenous (IV) pain medication and sought consultations with outside specialists for the patient could not show that her discharge was based on racial discrimination, the 10th U.S. Circuit Court of Appeals ruled.

Tammie Robinson was a registered nurse at St. John Medical Center (SJMC) in Tulsa, Okla., from December 2008 to March 15, 2011. In 2010, Robinson applied for a position as a registered nurse case manager, which did not involve providing primary care to patients. The director of case management, Sammye Valenzuela, interviewed and hired Robinson, who is black, for the position and became her supervisor.

In March 2011, SJMC admitted a patient with sickle cell anemia. Upon admission, a team of physicians began treating the patient; the team consisted of Dr. Ali Mohammad and several resident physicians. When the patient complained of pain and asked for IV pain medication, Dr. Mohammad sought a consultation from a palliative treatment team at the hospital. The palliative treatment team consisted of a physician, a registered nurse and a social worker. Due to concerns about the patient’s potential for opioid abuse and the need for better pain management, the palliative care team recommended that the patient transition to oral medication. After several meetings with the palliative care team, the patient indicated that she did not want the team to continue to treat her.

Robinson was a case manager in the unit where the patient was being treated, and became concerned that the patient’s physicians and palliative care team were not adequately treating her pain. Robinson questioned the resident physicians as to why the patient was not on antibiotics, why she did not have an IV pain pump and why a hematologist had not been consulted. Without direction from a physician, Robinson contacted a sickle cell treatment facility in Texas and obtained information about a physician at that facility, and asked the patient whether she was willing to have an IV pain pump. Robinson looked into obtaining a hematologist for the patient in Oklahoma City, and asked a social worker to see if transportation could be arranged.

Several physicians complained to Valenzuela, who spoke with Robinson and advised her of the seriousness of the situation. Valenzuela then consulted an HR representative about Robinson’s conduct. The HR representative stated that SJMC’s discipline policy permitted Valenzuela to either apply the last step before termination, which is a final suspension with pay, or to terminate Robinson’s employment.

To decide which option to select, Valenzuela further investigated the complaints concerning Robinson’s conduct. The palliative care team felt that Robinson’s actions had given the patient conflicting options and disrupted the patient’s care. SJMC’s medicine section chair and director of inpatient services agreed that Robinson’s actions had been disruptive and interfered with the patient’s care. Finally, a resident physician who had not complained to Valenzuela earlier repeated some of the complaints of other physicians on the team concerning Robinson’s conduct.

On March 15, 2011, Valenzuela notified Robinson that SJMC was terminating her employment. Valenzuela provided Robinson a disciplinary action form that described her unauthorized conduct and stated that she had acted outside the scope of her position. In response, Robinson filed a federal lawsuit in which she claimed discrimination based on race, retaliation for reporting an alleged racial comment and discharge in violation of Oklahoma public policy.

SJMC filed a motion to dismiss the case before trial, which was granted. On appeal, Robinson claimed that her job duties included patient advocacy, and the SJMC retaliated against her for complaining of a racially charged comment. Robinson also argued that she was not given an opportunity to explain her actions, and that nurses of other races had engaged in similar conduct but were not discharged. Finally, Robinson claimed that SJMC’s discharge decision violated public policy by infringing upon her professional obligations as a nurse.

The 10th Circuit rejected these arguments. The court accepted SJMC’s understanding of her job duties for purposes of determining whether it legitimately believed Robinson had exceeded her authority. SJMC denied that Robinson ever complained of racial comments before discharging her, and Robinson could not show that this denial was pretextual. The evidence showed that Valenzuela spoke with Robinson about her conduct prior to discharge, and Robinson could not show that any nurses subject to lesser discipline engaged in comparably serious conduct. The court also did not find that her discharge violated any public policy with regard to nurses.

Robinson v. St. John Medical Center Inc., 10th Cir., No. 15-5039 (April 13, 2016).

Professional Pointer: Employers must take special care to maintain consistency in administering discipline, including the discipline of professionals, and following the terms of their progressive discipline policies.

Jeffrey L. Rhodes is managing partner of the civil division of Albo & Oblon in Arlington, Va.

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