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Goodman v. Wesley Medical Center10/31/2003
from discharge or discrimination for such mandatory reporting.
In Flenker, 266 Kan. 198, this court considered whether a statutory remedy precluded filing a common-law tort action for retaliatory discharge. The Flenker court stated that an adequate statutory remedy precludes a common-law retaliatory discharge claim but determined that the OSHA statute in question did not provide an adequate remedy and permitted the common-law claim. 266 Kan. at 209-10. The Flenker court found the OSHA statutory remedy inadequate because the Secretary, not the employee, decided whether to pursue an action on behalf of the employee. 266 Kan. at 206. The court was concerned about the limitation created by the Secretary's discretion, which could be influenced by such things as budget constraints and political pressure. 266 Kan. at 206.
In Prager v. Kansas Dept. of Revenue, 271 Kan. at 49-50, the court applied the rule from Flenker but determined that the Kansas Whistleblower Act was an adequate remedy for state employees. The Prager court focused on the employee's control over his or her statutory claim, even though the statute imposed some procedural limitations. 271 Kan. at 49-50.
To determine whether the KRMA precludes a common-law claim for retaliatory discharge, this court must determine whether the statutory remedy in K.S.A. 65-4928 is adequate. K.S.A. 65-4928(b) provides:
"Any employer who violates the provisions of subsection (a) shall be liable to the aggrieved employee for damages for any wages or other benefits lost due to the discharge or discrimination plus a civil penalty in an amount not exceeding the amount of such damages. Such damages and civil penalty shall be recoverable in an individual action brought by the aggrieved employee. If the aggrieved employee substantially prevails on any of the allegations contained in the pleadings in an action allowed by this section, the court, in its discretion, may allow the employee reasonable attorney fees as part of the costs."
K.S.A. 65-4928 does not suffer from the same limitations as those found in Flenker and Prager. It gives an employee full authority to decide whether to pursue a cause of action in the state courts, while applying the same procedural rules as a common-law cause of action. In addition, K.S.A. 65-4928 expands the common-law remedy by permitting punitive damages and attorney fees. Because K.S.A. 65-4928 enhances rather than restricts the common-law remedy, it provides an adequate statutory remedy and precludes common-law retaliatory discharge claims for reporting standard of care issues in medical care facilities. With a statutory remedy available, the KNPA does not need to provide a public policy basis to support retaliatory discharge claims in the health care industry. Accordingly, the trial court erred when it concluded that the KNPA provided an adequate public policy exception to the employment-at-will doctrine in Kansas.
Our conclusion regarding the KNPA requires us to consider Goodman's argument that there is disputed evidence regarding Wesley's motive for terminating her. We are not aided by Goodman's factual allegations disputing Wesley's motive for termination, which are not keyed to the record. Material statements of fact that are not keyed to the record on appeal are presumed to be unsupported. Supreme Court Rule 6.02(d) (2002 Kan. Ct. R. Annot. 34); State v. Drach, 268 Kan. 636, 638, 1 P.3d 864 (2000).
The only evidence disputing Wesley's motive for terminating Goodman comes from Goodman's own opinion in her deposition testimony. Goodman testified in her deposition that she had no other evidence other than her own suspicions to back up her claim that Wesley fi
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