Where an employer has discharged an at-will employee because that employee refused to violate the law or any well established and clear mandate of public policy, or because the employee reported to his superiors or to public authorities serious misconduct that constitutes violation of the law and of such well established and clearly mandated public policy, the employee has a cause of action in tort for damages for wrongful discharge.

Facts : Plaintiff Pauline Kirk, a registered nurse, started working on a part-time basis for Mercy Hospital Tri-County on December 24, 1982. On July 12, 1983, plaintiff was employed full time as a charge nurse with the duty to supervise other nurses and assistants on the ward during her shift. In this capacity, she reported directly to Norma Sellers, the hospital's Director of Nursing.

Shortly before the plaintiff's termination, Debbie Crain was admitted to the hospital as one of plaintiff's patients. Soon after Debbie Crain's admission plaintiff, as required, made a nursing assessment and nursing diagnosis of the patient's condition. Her nursing diagnosis was toxic shock syndrome, a condition that results in death, if untreated. Plaintiff anticipated immediate doctor's orders for antibiotics to combat the life-threatening infection. Time passed with no such orders, and plaintiff repeatedly discussed the situation with Norma Sellers.

After showing extreme concern, plaintiff was instructed by Sellers to "document, report the facts and stay out of it." The treating doctor never gave the orders plaintiff expected for the proper care of Debbie Crain. When protocol allowed, plaintiff discussed Debbie Crain's condition with Dr. Jumper, the Chief of Medical Staff. Appropriate steps were then taken, but to no avail. Debbie Crain later died from the effects of massive internal infection.

Within a day or two prior to plaintiff's termination on March 22, 1984, Norma Sellers was visited by a member of Debbie Crain's family who informed her that plaintiff had offered to obtain Debbie Crain's medical records for the family. On the day of plaintiff's termination, a hospital employee reported to Sellers that plaintiff had stated Debbie Crain's physician was "paving her way to heaven." Sellers advised Mr. Lorimer, the hospital Administrator, of plaintiff's statement. He directed Sellers to terminate plaintiff that day, which she did.

Plaintiff received a letter from the hospital's attorney soon after her discharge which admonished her to "immediately cease making any further false statement regarding [the hospital]." Plaintiff then requested a service letter, and the hospital made the following response:

The reason and cause for your dismissal is that it came to the attention of the hospital administration that on several occasions you made certain statements concerning the hospital, its staff or employees which were untrue and detrimental to the hospital. These statements exhibited a lack of support for the hospital administration and medical staff.

Based on these facts, the trial court entered summary judgment in favor of the hospital, finding that "Missouri's public doctrine is one too narrowly defined to allow a true public policy `exception.'... Specifically, the Court can find no clear mandate in law or regulation prohibiting the actions of the [hospital] of which the plaintiff complains; namely, her discharge as a nurse."

The Court of Appeals overturned this decision.

Court Decision: Court Defined "public policy" as that principle of law which holds that no one can lawfully do that which tends to be injurious to the public or against the public good.

The gist of plaintiff's claim here is that her discharge violated a clear mandate of public policy as reflected in the Nursing Practice Act (NPA).

That Act and the regulations reveal a clear mandate of public policy. The purpose is to train and license a person to engage in the safe and competent practice of nursing. By definition, a professional registered nurse applies her specialized skills to (1) the prevention of illness to her patient, (2) care and counsel of ill persons, (3) administration of prescribed treatment and medication, and (4) assisting in the delivery of a health care plan. Such duties reflect the public policy of this state that registered nurses licensed in this state have an obligation to faithfully serve the best interests of their patients.

Plaintiff could clearly risk discipline and prosecution by the State Board of Nursing if she ignored improper treatment of a patient under her care. Inaction in that situation could be viewed as incompetence, gross negligence or misconduct on the part of plaintiff. It could be viewed as assisting or enabling another person to commit those acts, or a violation of plaintiff's professional trust. Registered nurses who do not engage in the safe and competent practice of nursing are disciplined under a regulation that exists for the benefit of the public who might suffer from the consequences of unsafe or incompetent nursing care.

Here, plaintiff perceived Debbie Crain was dying from improper medical treatment. After reporting her views to her direct superior, she was told to "stay out of it." We are convinced the NPA regulations hereunder sets a forth a clear mandate of public policy that plaintiff not "stay out" of a dying patient's improper treatment. Plaintiff's constant and immediate involvement in seeking proper treatment for Debbie Crain was her absolute duty. Common sense dictates this is the highest duty in the nursing profession.

Kirk v. Mercy Hospital Tri-County, 851 S.W. 2d 617; 1993 Mo. App.

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