Nurse Contravenes Doctor's Instructions, Orders Blood Tests, and Performs Medical Procedure Without Authorization
	Hospital Terminates Nurse; Nurse
	Claims Hospital Should Have Disciplined Her Progressively

Did Employee Handbook Create a Contract?

Nurses working in most hospitals and medical facilities are invariably given an employee handbook that spells out the policies and procedures of the employer, rights and responsibilities of the employee, and types of disciplinary actions that may be taken for various offenses. When an employee commits an infraction that requires some disciplinary action, both parties would normally look to the manual for guidance.

In many instances, the employee would expect to receive a warning or a milder disciplinary action on the first infraction, but, as this case demonstrates, the employer can met out the ultimate form of discipline _ termination, if the seriousness of the offense so warrants.

Plaintiff Marcia G. Frank (Frank) brought this action against South Suburban Hospital Foundation (South Suburban), a not-for-profit Illinois corporation that operates South Suburban Hospital in Hazel Crest, Illinois, to recover damages resulting from the alleged wrongful termination of her employment as a nurse-supervisor. Cross-motions for summary judgment were filed, and the circuit court granted South Suburban's motion and denied Frank's motion. Frank appealed. The Appellate Court of Illinois affirmed the decision.

Frank was hired by South Suburban in October 1984, and became the nursing supervisor of South Suburban's Oncology Unit when it opened in January 1985. She had first become a registered nurse in Illinois in 1965, and had received her B.S. in 1982 and her M.S. in 1985. Frank had been employed previously at St. Elizabeth Hospital in Chicago, St. Margaret Hospital in Hammond, Indiana, and Ingalls Memorial Hospital in Harvey, Illinois.

As part of the hiring and orientation process, Frank received a letter of appointment dated September 25, 1984, and a notice of an orientation meeting. That notice advised her to attend the meeting with her "Employee Handbook." During her employment, two very similar versions of the handbook were in force. The personnel policies and procedures of South Suburban were distributed, and Frank kept these in a policy book at the nurses' station and in her office.

South Suburban characterizes the Employee Handbook as a general resource guide. The first page, entitled "Welcome," states that the Handbook is intended to provide employees with some "basic guidelines" about employee "rights and responsibilities" and South Suburban's structure. The third page, entitled "Foreword," states that the Handbook is a "general manual" only, and may be revised at any time. A section of text set off from the rest of the page states that "this handbook is a basic guide only. It is not a definitive policy or procedure manual. The hospital and its functional units maintain specific operating manuals, policies, procedures and rules." Employees are told that they "may also refer to the hospital's Personnel Policy and Procedure Manual."

The Discipline section of the Handbook lists five "types of disciplinary action that may be taken ." These are first reprimand, second reprimand, one-day suspension, three-day suspension, and discharge. The Handbook specifies that "[the type of action will depend upon the severity of the offense and the corrective action deemed necessary by the direct supervisor."

South Suburban's Progressive Discipline Policy lists the same five examples of disciplinary action, any of which may be imposed depending upon the severity and circumstances of the offense. "Progressive discipline may begin or advance to any step omitting action at lesser step(s) dependent upon the severity of the employee infraction(s)." Discharge, in particular, may occur for "commission of a first infraction of a serious nature." The Policy specifies that three-day suspensions "[m]ay be administered to an employee in
Nurse Claims Hospital Should Have Disciplined Her Progressively
lieu of immediate discharge pending investigation."

The purposes and scope of the policy is listed as "[t]o define and specify the methods for administering discipline and to insure fair and consistent treatment of employees in violation of hospital policies and procedures." Finally, the Progressive Discipline Operational Practice Standard Procedure provides that the department manager or supervisor is to review the facts of the case and the disciplinary action with the employee, and to obtain the employee's signature on the disciplinary action form.

The Employee Behavior Policy specifies that "[b]ehavior that requires disciplinary action includes, but is not limited to the following.." Twenty-six examples follow, including "11. Deliberate failure to follow instructions or to work in accordance with hospital or department policies and procedures." This Policy also specifies that "[t]he nature of the disciplinary action administered will be based on the nature of the incident." The Medical Leave of Absence Policy provides that an employee may commence a leave of absence no later than the 15th day after being away from work for medical reasons. An employee must exhaust accumulated sick pay first, with the remaining time being unpaid. The duration of a leave is 30 to 180 days.

Another Policy calls for annual reviews of performance, and Frank's first review in March 1985 was positive. At her next review in October 1985, she was given both positive and negative evaluations, and was awarded a pay increase of 5%, identified as representing a performance level "above expectations." In April 1986 she was awarded a 2% merit increase on top of a 4% across-the-board increase, for performing according to expectations. Her performance review of October 1986 also showed her performing according to expectations.

Facts : On March 17, 1987, a patient in the oncology unit experienced an erratic and accelerated heart beat. His pulse rate was 170 to 180, and the normal rate would be 60 to 100. A "stat EKG" was ordered by a nurse and approved by the patient's physician, Dr. Fanaipour, who ordered other tests as well. Another of the patient's physician, Dr. Mehta, was contacted by telephone. He ordered that digoxin (the generic name for the product Lanoxin) be given, and it was. After the EKG and lab test results were received, Dr. Mehta ordered the administration of more digoxin intravenously.

At this point Frank intervened. She noted from the patient's chart that in the past he had been given digoxin, and became concerned that he might be "digtoxic", meaning that he had too much digoxin in his system. She called the laboratory and ordered that a digoxin level test be performed on blood already taken from the patient. Before the results of the test were available, Frank observed a staff nurse preparing to inject the additional digoxin ordered by Dr. Mehta. She directed the nurse not to administer the drug until the digoxin level test had been completed.

Additionally, Frank performed a medical procedure known as carotid massage on the patient. This procedure is designed to lower the heart rate, and should generally be performed only on a patient who is being monitored. The patient in question was not monitored. Frank did not know whether or not the patient was in life-threatening condition. When Dr. Mehta arrived on the floor and learned that the digoxin he had ordered had not been administered, he became upset and wanted to know why Frank had interfered with his orders. Frank was immediately suspended for three days pending investigation, in lieu of immediate discharge.

On March 30, 1987, South Suburban terminated Frank, due to her actions on March 17 and the management deterioration which had occurred in her unit. Frank's signature appears on the disciplinary action form, under her notation "Signature signifies reading above only. Am in disagreement charges not true."

Frank filed suit against South Suburban for wrongful discharge on July 10, 1987.

Court Decision: The only issue in this case is whether there is a genuine issue of material fact as to whether the Employee Handbook and Policies provided to Frank upon her employment created contractual rights giving her employment status that could not be terminated at the will of South Suburban. Frank argues that the Employee Handbook, the Progressive Discipline Policy, the Medical Leave of Absence Policy, and the Employee Behavior Policy separately and in unison formed the required contract. South Suburban asserts that they do not.

In a recent case, this court has held that a handbook or policy manual which contains a disclaimer and additionally did not promise to apply progressive discipline in all situations does not constitute a contract.

In this case, South Suburban's documents contain no parallel language. The Employee Handbook and the Policies at issue merely describe some conduct that may subject an employee to discipline, and list certain types of disciplinary action that might be taken. There is no promise to follow a course of progressive discipline in every situation prior to termination; in fact, the Handbook and Policies at issue expressly state that the type of discipline depends entirely upon the severity of the offense, as determined by the employee's supervisor. There is no ambiguity about this contract language at all, despite Frank's assertions to the contrary.

Hospital's employee handbook did not create contractual rights giving employee employment status that could not be terminated at will of hospital; handbook merely described some conduct that could subject employee to discipline and listed certain types of disciplinary action that could be taken, but did not promise to follow course of progressive discipline in every situation prior to termination.

Even if this court were to determine that a contract existed between Frank and South Suburban, at most the contract would be that South Suburban would adhere to the Policies and Procedures it had distributed to its employees. Since those Policies and Procedures provide for South Suburban's complete discretion in the implementation of the progressive discipline procedure, however, and since South Suburban followed its policies exactly in this case, discharging Frank for a first infraction of a serious nature at the discretion of her supervisor, the granting of South Suburban's motion for summary judgment would still have been appropriate. Frank's arguments that the alleged contract contained promises that discipline would be employed only where warranted, that any discipline must be progressive, and that discipline must be fairly and consistently enforced are contradicted by the language of the Policies and Procedures.

As the circuit court correctly found, there was no genuine issue of material fact in this case, and South Suburban was entitled to judgment as a matter of law. Accordingly, the circuit court properly dismissed Frank's motion for summary judgment.

 Frank v. South Suburban Hospital Foundation,628 N.E. 2d 953 (I11. App. 1 Dist. 1993)

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