Maine SC reinstates whistleblower suit

Jessica M. Karmasek Mar. 10, 2011, 11:46am

AUGUSTA, Maine (Legal Newsline) - The Maine Supreme Court has vacated the judgment of a lower court in the case of an operating room nurse who says her termination was in violation of the state's Whistleblower Protection Act.

The Court, in an opinion filed March 3, held that there is a genuine issue of material fact as to whether the nurse engaged in protected activity under the WPA, and ordered the case to be remanded.

Mary Stewart-Dore worked at Southern Maine Medical Center from April 1991 until June 5, 2008, when her employment was terminated.

In July 2007, Stewart-Dore says she learned that another nurse was ill with a staph infection. Stewart-Dore says she administered antibiotics to that nurse as part of the nurse's treatment. Afterward, Stewart-Dore says she was concerned about the risk of the infection spreading and spoke about it with her supervisors and the infection control nurse, who assured her that it was safe for the other nurse to work.

However, the relationship between Stewart-Dore and the other nurse allegedly soured after the incident, and both began complaining to their supervisors about harassment and immature comments made by each other.

Stewart-Dore claims her complaints included allegations that the other nurse would not always relay patient information to her and that this behavior was negatively affecting patient care.

In January 2008, supervisors called in the two nurses and warned them that their personal conflict was becoming a problem.

Following the meeting, the two nurses had a confrontation in which they bumped into each other while one was steadying a patient receiving an epidural. The doctor present reported the incident and stated he was concerned that the tension between the two was starting to affect patient care. The nurses were then told they would be split in their shift assignments and warned that future problems would result in discipline.

However, the nurses continued to complain about each other. Two more incidents followed. The first was on April 10, 2008, when the other nurse allegedly threw away a chore list that Stewart-Dore had posted. The second incident was on May 29, 2008, when the two disagreed over the proper antibiotic to be given to a patient.

Following the second incident, Stewart-Dore told her supervisor she wanted to file a formal complaint with the hospital's security manager. Stewart-Dore, the supervisor and the security manager attended the meeting. Stewart-Dore claims she told the security manager about what she felt was harassment by the other nurse, "and how it was affecting patient care."

Following the meeting, the supervisor contacted the vice president of human resources and reported that Stewart-Dore told the security manager about the other nurse's earlier staph infection. The vice president interviewed Stewart-Dore, who denied disclosing the information. The security manager, however, confirmed the disclosure.

The vice president then terminated Stewart-Dore's employment, noting it was based on her breach of patient confidentiality.

Stewart-Dore then filed a complaint alleging her termination was in violation of the WPA, and alleging other claims that she did not pursue on appeal.

The hospital filed a motion for summary judgment. The court granted summary judgment in favor of the hospital, holding there was no issue of material fact regarding whether Stewart-Dore had engaged in protected activity. Stewart-Dore then filed an appeal with the state's high court.

Justice Warren M. Silver, who authored the Court's eight-page opinion, said Stewart-Dore's complaints -- with the exception of those regarding the other nurse's staph infection -- are "more amorphous than the examples above" and "are complicated by the fact that Stewart-Dore was a party to the conflict that she alleges was creating a dangerous condition."

The Court continued, "There is conflicting testimony as to what Stewart-Dore reported in her repeated complaints to her supervisors, and whether those complaints were a good faith effort to report what she reasonably believed was a dangerous condition or practice at the hospital.

"The evidence presented was sufficient to raise a genuine issue of material fact with regard to whether Stewart-Dore engaged in protected activity."

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