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Morrissey-Manter v. Saint Francis Hospital and Medical Center

Court of Appeals of Connecticut

June 28, 2016

ANNEMARIE MORRISSEY-MANTER
v.
SAINT FRANCIS HOSPITAL AND MEDICAL CENTER ET AL.

          Argued March 1, 2016

         Appeal from Superior Court, judicial district of Hartford, Peck, J.

          Henry E. Jacobs, for the appellant (plaintiff).

          Christopher A. Klepps, with whom was Christopher L. Brigham, for the appellees (defendants).

          OPINION

          PRESCOTT, J.

         In this wrongful termination of employment action, the plaintiff, Annemarie Morrissey-Manter, appeals from the summary judgment rendered by the trial court in favor of the defendants, Saint Francis Hospital and Medical Center, and Saint Francis Care, Inc.[1] On appeal, the plaintiff claims that the court improperly granted the defendants’ motion for summary judgment as to four counts of her amended com-plaint[2] because one or more genuine issues of material fact existed with respect to her claims that (1) an implied contractual agreement between the parties prohibited her discharge without cause, (2) the defendants terminated her employment in violation of an important public policy, (3) the defendants breached the covenant of good faith and fair dealing by terminating her employment in ‘‘bad faith, ’’ and (4) the defendants withheld certain medical records and destroyed evidence that would have supported her cause of action.[3] We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. The plaintiff was employed as a registered nurse at Saint Francis Hospital and Medical Center for thirty-two years. On June 4, 2012, at Manchester Memorial Hospital, a patient was seen for cardiac distress. A temporary cardiac pacemaker (pacer) was inserted into the patient. The patient was then transferred to the emergency department at the defendants’ facility, and, from there, into the defendants’ cardiac intensive care unit. During the transfer of the patient, an admitting nurse unhooked the patient’s temporary pacer from the external pacer box, and the pacer box was returned to the ambulance crew that had transferred the patient. Subsequently, members of the nursing staff at the defendants’ facility were unable to connect the patient’s transvenous pacer wire to an external temporary pacer box because the defendants lacked a proper adapter.

         During this event, the plaintiff came into the room to offer support to the patient’s team and to help stabilize the patient. In violation of hospital policy, but in order to assist the medical team, she took a blade and cut a small portion of the plastic covering the end of the pacer wire in an attempt to make the pacer wire fit into the defendants’ temporary pacer box. The plaintiff successfully connected the pacer wire to the temporary pacer box, and, at that point, the patient’s blood pressure improved and he stabilized.

         On June 7, 2012, Gilda Cabral, a nurse manager, met with the plaintiff and discussed a disciplinary action form that had been prepared against her on June 6, 2012. The form, after describing the event as previously discussed, stated that the patient’s condition began to deteriorate the morning following his admission to Saint Francis Hospital, and that Dr. Aneesh Tolat, an electro-physiologist, was asked to assess the patient. After assessing the patient, Dr. Tolat determined that the patient was receiving inadequate pacing because the pacer wire may have been compromised and was not stable. Because of this instability, a new pacer wire had to be inserted into the patient through catheterization. According to the form, Dr. Tolat emphasized that ‘‘a catheter can never be tampered with. Once it is, even if it seems that the wire is functioning correctly, there is always a question as to the stability of the wire.’’ (Emphasis omitted.) Furthermore, Dr. Tolat was ‘‘very disturbed’’ by the plaintiff’s action, which he characterized as ‘‘inappropriate and unacceptable.’’ On the form, the box labeled ‘‘termination’’ was marked as the appropriate disciplinary step to be taken, and the form concluded: ‘‘This action posed a significant patient safety concern, as this action could have had potentially lethal consequences to the patient; since this wire was in place to ensure that the patient’s heartbeat was paced correctly. By compromising the wire, this resulted in the patient having to undergo a procedure to have a new catheter inserted. In addition, this action posed a significant risk to the [h]ospital because this action is not within the scope of practice for a [s]taff [registered nurse].’’ (Emphasis in original.) The plaintiff resigned her position in lieu of termination.

         The plaintiff commenced this action against the defendants on August 27, 2012. In her initial five count complaint, the plaintiff alleged breach of an implied contract of employment, violation of the covenant of good faith and fair dealing, wrongful discharge in violation of public policy, negligent infliction of emotional distress, and defamation. On February 14, 2014, the defendants filed a motion for summary judgment, claiming that the plaintiff could not establish the prima facie elements for any of the claims alleged in her complaint. In support of their motion, the defendants filed a memorandum of law, an affidavit by an employee in the defendants’ human resources department, copies of two disciplinary action forms against the plaintiff, copies of the defendants’ disciplinary action policy and pension plan policy, the plaintiff’s responses to the defendants’ first set of interrogatories, and an excerpt from the defendants’ employee handbook.

         On April 15, 2014, the plaintiff filed an objection to the defendants’ motion for summary judgment. In support of her objection, the plaintiff filed a memorandum of law, the plaintiff’s affidavit, and a copy of the plaintiff’s letter of resignation. The court held a hearing on the defendants’ motion for summary judgment and the plaintiff’s objection on May 5, 2014. At that time, the plaintiff stated that she wanted to amend her complaint to include a claim for spoliation of evidence. The court instructed the plaintiff to file such a request as soon as possible.

         On May 21, 2014, the plaintiff filed a request for permission to amend her complaint to add a count for spoliation of evidence, alleging that the defendants had destroyed and altered the patient’s medical records, and had disposed of the pacer wire in bad faith. On July 28, 2014, which was the second day of the hearing on the motion for summary judgment, the court granted the plaintiff’s request. With the court’s permission, the parties filed supplemental briefs and exhibits that addressed the claim of spoliation. The court issued its memorandum of decision on January 5, 2015. The court concluded that the evidence submitted did not support the existence of an implied contract of employment, and, thus, the plaintiff’s status was as an at-will employee. The court also concluded that the plaintiff had not established a genuine issue of material fact regarding the prima facie elements for a cause of action for breach of the covenant of good faith and fair dealing, that she failed to cite a relevant public policy that was violated by her termination of employment, and that she failed to establish a genuine issue of material fact regarding the elements of a claim for spoliation because there was no evidence that any medical records had been destroyed or that the pacer wire had been destroyed by the hospital in bad faith. Accordingly, the court granted the defendants’ motion for summary judgment as to all six counts of the plaintiff’s complaint. This appeal followed.

         Before reaching the plaintiff’s individual claims, we set forth this court’s standard of review in a summary judgment case. ‘‘The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . .

         ‘‘In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . .

         ‘‘The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue . . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents. . . . The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence. . . . Our review of the trial court’s decision to grant a motion for summary judgment is plenary.’’ (Internal quotation marks omitted.) Brusby v. Metropolitan District, 160 Conn.App. 638, 645–46, 127 A.3d 257 (2015).

         I

         The plaintiff first claims that the trial court improperly rendered summary judgment on her count alleging the breach of an implied contract of employment because there was a genuine issue of material fact regarding the existence of an implied employment contract as evidenced by the defendants’ ‘‘words, actions, conduct [and] course of performance . . . .’’ (Emphasis omitted.) Specifically, the plaintiff argues that she was not an at-will employee because she was subject to progressive discipline, received merit pay and annual job performance reviews, participated in a 401 (k) retirement plan, received verbal assurances of continued employment, and was referred to as ‘‘ ‘a team player and devoted to her job.’ ’’ For these reasons, the plaintiff argues, she could not be discharged without just cause. We conclude that the court properly rendered summary judgment on this count.

         The following additional procedural history is necessary for our review of this claim. In support of their motion for summary judgment, as supplemented, the defendants submitted an affidavit, copies of their disciplinary action and pension plan policies, and an excerpt from their employee handbook stating that ‘‘[t]he relationship between Saint Francis and its employees is a relationship of employment at will.’’ The affidavit, signed by Diane Trudeau, a manager in their human resources department, averred that the plaintiff was a noncontractual employee, the defendants adhere to the at-will doctrine in all of their policies and procedures, the plaintiff signed an acknowledgement in 1986 that she received a copy of the employee handbook containing such policies, and at-will employment at the defendants’ facility can be documented back to 1992. The policies and employee handbook excerpt that the defendants filed with their motion for summary judgment corroborated Trudeau’s statements.

         The disciplinary action policy provides that ‘‘[a]n employee may be given a Final Written Warning with or without Suspension or be terminated, at any time, with or without notice, for a violation of Organization policy or practice or a significant performance issue.’’ (Emphasis omitted.) Another policy, titled ‘‘Employment at Will, ’’ provides in relevant part: ‘‘The purpose of this policy is to affirm that employees who do not have a separate, individual employment contract with the hospital for a specific, fixed term of employment are employed at the will of the hospital for an indefinite period. Employees may resign from the hospital at any time, for any reason, and may be terminated by the hospital at any time, for any reason, with or without cause, and with or without notice.’’ That policy further provides that ‘‘[t]his policy shall not be modified by any statements contained in this or any other employee handbooks, employment applications, hospital recruiting materials, memoranda, or other materials provided to employees in connection with their employment. None of those documents, whether singly or combined, shall create an expressed or implied contract of employment for a definite period or an expressed or implied contract concerning any terms or conditions of employment.’’ The final paragraph in that policy provides: ‘‘Nothing contained in this manual, employee handbooks, employment applications, memoranda, or other materials provided to employees in connection with their employment shall require the employer to have ‘just cause’ to terminate that employee or otherwise restrict the employer’s right to terminate an employee at any time or for any reason.’’

         In her objection to the defendants’ motion for summary judgment, the plaintiff did not challenge the existence of the policies as described. Rather, she argued that she had been employed at the defendants’ facility for thirty-two years, had been assured that she would remain employed there as long as she did a good job, had received complimentary correspondence regarding her exemplary service, and had been advised that disciplinary action was generally progressive and was a process. Additionally, she alleged that the defendants admitted that they have a matching pension plan contribution in place for all eligible employees. Her affidavit repeats these allegations, although she does not identify the persons who assured her of continued employment if her work performance remained satisfactory. On appeal, the plaintiff contends that she provided sufficient information to create a genuine issue of material fact as to whether she had an implied contract of employment with the defendants. We disagree.

         ‘‘In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability.’’ (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697–98, 802 A.2d 731 (2002). ‘‘In order to prevail on [her] claim, the plaintiff must demonstrate an actual agreement by the defendant to have an employment contract with [her]. A contract implied in fact, like an express contract, depends on actual agreement. . . . Accordingly, to prevail on [her] wrongful termination claim, which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that [the defendant] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which [she] could not be terminated without just cause [following progressive disciplinary measures]. . . . To survive a motion for summary judgment, the plaintiff had the burden of presenting evidence that the defendant had agreed to some form of contract commitment.

         ‘‘A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties. . . . The mere fact that the plaintiff believed [certain actions or policies] to constitute a contract does not bind [the defendant] without some evidence that it intended to be bound to such a contract.’’ (Citations omitted; internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 729–30, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).

         The plaintiff’s arguments in support of the existence of an implied contract of employment have been made by other plaintiffs in other cases and have been rejected by this court. For example, in Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 843, 888 A.2d 104 (2006), ‘‘[t]he plaintiff claim[ed] that such things as periodic reviews, setting dates at which there would be salary increases, setting long-term benefits and the way other employees were treated [were] evidence of an implied contract between her and [the defendant] that she would not be discharged except for cause. [This court held that] [t]he plaintiff fail[ed] to recognize, however, that it [was] her burden to establish that adherence to these policies and procedures was the result of a contractual commitment by the defendant. [C]ontracts are not created by evidence of customs and usage.’’ (Internal quotation marks omitted.)

         Furthermore, as previously quoted from the defendants’ policies and employee handbook, the defendants disclaimed anything other than an at-will employment relationship with any of their employees who did not have written contracts. Our Supreme Court has ‘‘stated with unambiguous clarity that employers can protect themselves against employee contract claims based on statements made in personnel manuals by following either (or both) of two simple procedures: (1) eschewing language that could reasonably be construed as a basis for a contractual promise; and/or (2) including appropriate disclaimers of the intention to contract . . . .’’ (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535, 733 A.2d 197 (1999).

         The evidence presented to the trial court by the defendants in support of their motion for summary judgment reveals the existence of such disclaimers in their policies and employee handbook, and the plaintiff presented no competent summary judgment evidence that contradicts that evidence. See Brusby v. Metropolitan District, supra, 160 Conn.App. 646. Accordingly, the trial court properly rendered summary judgment as to this count because the plaintiff failed to present evidence that established that there was a genuine issue of material fact regarding whether an implied contractual agreement existed that would prohibit the termination of her employment except for just cause.

         II

         The plaintiff next claims that the court improperly rendered summary judgment on count three of her complaint, which alleges that the defendants terminated her employment in violation of an important public policy. See Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 476, 427 A.2d 385 (1980) (employer lacks discretion to terminate at-will employee if termination would violate important public policy). The defendants respond that the court properly determined that the plaintiff failed to identify an important and clearly articulated public policy that was violated as the result of her discharge. We conclude that the plaintiff cannot prevail on her claim.

         The following additional procedural history is relevant to this claim. In her amended complaint, the plaintiff alleged that her termination violated two public policies. First, she alleged that ‘‘[e]ven if this was an at-will employment arrangement, allowing an employer to terminate an employee for saving a man’s life is against public policy. Saving a person’s life is a substantial public policy and should fall under [t]he [p]ublic [p]olicy [e]xception to the [a]t-[w]ill [e]mployment [r]ule.’’ Second, she alleged that ‘‘[t]he [defendants’] attempt to cover up their liability exposure, by firing the [plaintiff] who stepped up to the plate to save a man’s life, is improper and violates public policy.’’

         In their motion for summary judgment, the defendants claimed that the plaintiff had ‘‘not alleged an established public policy’’ and that she should not ‘‘be immunized from an adverse employment action for allegedly saving a patient’s life . . . .’’ At the hearing before the trial court on their motion, the defendants’ counsel argued that the plaintiff had altered medical equipment, which was against hospital policy, and that her termination from employment was therefore proper even if she did save a patient’s life.

         In response, in her opposition to the defendants’ motion for summary judgment, the plaintiff expanded upon her public policy claim. In support of her allegation that her termination violated a public policy against covering up medical malpractice, the plaintiff set forth two arguments. First, the plaintiff argued that terminating an employee in order to hide medical malpractice by the employer violates a general public policy against covering up negligence. Second, the plaintiff appeared to argue that the defendants had a duty to report adverse medical events to the Department of Health pursuant to General Statutes § 19a-127n (b).[4] According to the plaintiff, that statute embodies a public policy against hospitals covering up medical malpractice, which her termination violated because the defendants’ goal in terminating her employment was to cover up an adverse event-the inability to connect the pacer wire to the temporary pacer box.

         In support of her allegation that her termination violated a public policy in favor of saving a person’s life, the plaintiff argued that her termination violated the public policy inherent in the rescue doctrine, because the defendants’ negligence placed the patient in peril and invited rescue. ‘‘The rescue doctrine is a bar to or precludes the affirmative defenses of contributory negligence and assumption of the risk. A person is not contributorily negligent who, with due care, encounters a risk created by a defendant’s negligence in order to perform a rescue necessitated by that negligence, and it is not contributory negligence for a plaintiff to expose him- or herself to a danger in a reasonable effort to save a third person from harm.’’ (Footnotes omitted.) 65A C.J.S. 46–47, Negligence § 267 (2010). ‘‘The ‘rescue doctrine’ allows an injured rescuer to recover damages from the person whose negligence created the need for rescue.’’[5] Id., p. 48.

         The court granted the defendants’ motion for summary judgment as to the plaintiff’s public policy count. Concerning the plaintiff’s argument that her termination violated a public policy against covering up medical malpractice, the court held: ‘‘While the plaintiff argues that she was terminated in an effort to cover up possible medical malpractice committed by the defendants’ other employees, she has proffered no evidence of this alleged malpractice beyond simply speculating that it occurred; nor has the plaintiff cited a relevant public policy that was violated by her termination under the circumstances.’’

         With respect to the plaintiff’s assertion that her termination violated the public policy inherent in § 19a-127n (b), the court stated: ‘‘An ‘adverse event’ is defined within [§ 19a-127n (b)] as ‘any event that is identified on the National Quality Forum’s List of Serious Reportable Events or on a list compiled by the Commissioner of Public Health and adopted as regulations’ . . . . General Statutes § 19a-127n (a) (1). Without entering the National Quality Forum’s List of Serious Reportable Events into evidence, the plaintiff states that the List includes ‘patient death or serious injury associated with the use or function of a device in patient care, in which the device is used or functions other than as intended.’ The plaintiff alleges that because the defendants did not report the adverse event at the heart of this litigation to the Department of Public Heath, the event could not have transpired the way the defendants claim it did, and therefore a material issue of fact exists, which precludes the entry of summary judgment as to count three. The plaintiff does not specify exactly what this material issue of fact is, and it is difficult to see how the defendants’ alleged failure to comply with the statute is relevant to whether the plaintiff’s dismissal occurred for a reason that violates public policy.’’

         Concerning the public policy inherent in the rescue doctrine, the court held that ‘‘[t]he doctrine is invoked only in determining whether the rescuer’s contributory negligence is to be excused. . . . The rescue doctrine does not constitute a public policy for the purposes of an exception to the at-will employment doctrine; nor is it clear how the rescue doctrine is applicable to the circumstances of the plaintiff’s case.’’ (Citation omitted; internal quotation marks omitted.)

         Importantly, on appeal, the plaintiff does not reassert her contention, made before the trial court, that her termination violated the public policy in favor of saving a person’s life as reflected in the rescue doctrine. The plaintiff did not brief on appeal, or mention in any way, her argument that her termination violated the public policy inherent in the rescue doctrine in favor of saving a person’s life. Indeed, we have scoured the relevant portions of the plaintiff’s brief and have found absolutely no mention or analysis of a general public policy of saving lives or the rescue doctrine. Although the plaintiff factually argues in her brief that her actions saved the patient’s life, she does not argue that the defendants’ actions in terminating her employment after she saved a life violated an important and clearly articulated public policy of ‘‘saving lives.’’ Accordingly, we deem this claim abandoned and decline to review it. See Fradianni v. Protective Life Ins. Co., 145 Conn.App. 90, 92 n.2, 73 A.3d 896 (claim or argument not briefed deemed abandoned), cert. denied, 310 Conn. 934, 79 A.3d 888 (2013); Deutsche Bank National Trust Co. v. Shivers, 136 Conn.App. 291, 292 n.2, 44 A.3d 879 (claim not briefed on appeal deemed abandoned, and court may decline to review it), cert. denied, 307 Conn. 938, 56 A.3d 950 (2012).

         The dissent implicitly concedes that this public policy ground is not raised, analyzed, or even mentioned in the portion of the plaintiff’s appellate brief addressing count three. Instead, the dissent appears to suggest that a party has not abandoned a claim on appeal as long as that claim was made before the trial court and mentioned in oral argument before this court. This assertion is contrary to well established precedent that appellate courts will treat as abandoned claims that are not briefed adequately.[6] See Barros v. Barros, 309 Conn. 499, 503 n.4, 72 A.3d 367 (2013) (claim deemed abandoned for inadequate briefing); State v. Weston, 164 Conn. 635, 636, 325 A.2d 457 (1973) (claim not briefed on appeal, although argued during oral argument, treated as abandoned); Braham v. New bould, 160 Conn.App. 294, 312 n.15, 124 A.3d 977 (2015) (claim abandoned that was not properly briefed because ‘‘[i]t is not the role of this court to undertake the legal research and analyze the facts in support of a claim or argument when it has not been briefed adequately’’ [internal quotation marks omitted]).

         Adherence to this well established precedent is particularly warranted in this case for the following reasons. The dissenting opinion appears to find an important and clearly articulated public policy of ‘‘saving lives’’ inherent in the rescue doctrine, Connecticut’s good Samaritan law pursuant to General Statutes § 52-557b, and the public safety exception to the warrant requirement. Because these potential sources of a public policy exception to the employment at-will doctrine were not raised by the plaintiff in her brief, the defendants have had no opportunity to respond to or analyze them.

         Moreover, although this court has the discretion to address an abandoned claim; Ward v.Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004); we should be particularly cautious of addressing a claim that, in essence, asks the court to recognize a new and broad public policy exception to the at-will employment doctrine without adequate briefing because of the narrowness of the public policy exception to the at-will employment doctrine. See Thibodeau v.Design Group One Architects, LLC, supra, 260 Conn. 701 (‘‘the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one’’ [internal quotation marks omitted]). Caution is particularly warranted in a case, like this one, involving emergency medicine. There may be compelling reasons in the complex world of emergency medicine that would counsel against recognizing the public policy articulated by the dissent, at least as broadly as the dissent has framed it. As this court previously has suggested in Armshaw v.Greenwich Hospital, 134 Conn.App. 134, 138, 38 A.3d 188 (2012), medical providers should have significant discretion to terminate the employment of an at-will employee who has violated hospital procedures and policies that are in place to guarantee the safety and proper care of patients. Id. (‘‘[o]ur review of the record . . . does not uncover any explicit statutory mandate, constitutional provision or judicial determination that prevents a hospital from discharging an at-will nursing employee, who has been the subject of previous disciplinary action, for failing to ...


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