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Goodman v. Wesley Medical Center10/31/2003
the applicable standard of care to a degree which constitutes gross negligence, as determined by the board; "(2) repeated instances involving failure to adhere to the applicable standard of care to a degree which constitutes ordinary negligence, as determined by the board; or
"(3) a pattern of practice or other behavior which demonstrates a manifest incapacity or incompetence to practice nursing."
Wesley argues that the KNPA is not specific enough to establish clear public policy rules, regulations, or law as the basis for a retaliatory discharge claim because it refers to an undefined standard of care that requires a factual determination by the Kansas State Board of Nursing.
Several Kansas cases support Wesley's claim that whistleblowing must be based on violations of specific and definite rules, regulations, or laws. See Connelly v. Kansas Highway Patrol, 271 Kan. 944, 946, 26 P.3d 1246 (2001) (involving reports from Kansas Highway Patrol officers of violations of highway motor carrier inspection laws); Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 44, 20 P.3d 39 (2001) (reporting violation of Kansas taxation statutes); Flenker v. Willamette Industries, Inc., 266 Kan. 198, 199, 210, 967 P.2d 295 (1998) (considering OSHA violations for machine safety and holding that plaintiff could maintain a state-law tort claim for retaliatory discharge because the federal OSHA remedy was inadequate); Palmer, 242 Kan. at 899 (recognizing the tort of retaliatory discharge for reporting Medicaid fraud); Moyer v. Allen Freight Lines, Inc., 20 Kan. App. 2d 203, 208, 885 P.2d 391 (1994) (denying a directed verdict on trucker's claim that she was fired for reporting equipment failures in violation of Department of Transportation regulations).
Wesley also relies on Aiken v. Business and Industry Health Group, Inc., 886 F. Supp. 1565 (D. Kan. 1995), and Prince v. St. John Medical Center, 957 P.2d 563 (Okla. App. 1998). Wesley's reliance on Prince is misplaced. In Prince, a nurse claimed that she was terminated because she told a co-worker and her supervisor that they should have reported additional facts to investigators concerning the death of an infant in the hospital. The nurse claimed that the failure to report was a violation of an Oklahoma statute requiring the medical examiner to investigate all human deaths. The Prince court held that the statute in question did not impose an obligation on anyone other than the medical examiner and, thus, could not support the nurse's claim for relief. 957 P.2d at 565. The Prince case can be distinguished from this case because it alleged the violation of a statute with specific requirements, contrary to Wesley's theory that the KNPA's provisions are vague, factually-dependent standard-of-care requirements rather than specific requirements.
Aiken, however, is instructive for this case. In Aiken, a physician claimed that he was terminated because he refused to put the employer's economic interests ahead of his patient's interests. The doctor claimed that compliance with the employer's treatment policies would have forced him to violate professional competency requirements pursuant to the Kansas Healing Arts Act and the Hippocratic oath. Noting that the Kansas Supreme Court had not addressed the public policy issue, the federal district court refused to expand the categories of rules, regulations, or law that are recognized grounds for retaliatory discharge claims. The Aiken court's decision was based on the doctor's failure to show that his actions were "protected by or in furtherance of a clear mandate of Kansas public policy." 886 F. Supp. at 1573. The Aiken court noted that there was no evidence, other than the plaintiff's own perso
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