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Stillson v. St. Joseph County Health Dep't

Court of Appeals of Indiana

December 2, 2014

BEVERLY S. STILLSON, Appellant-Plaintiff,
v.
ST. JOSEPH COUNTY HEALTH DEPARTMENT, Appellee-Defendant

APPEAL FROM THE ELKHART SUPERIOR COURT. The Honorable Evan S. Roberts, Judge. Cause No. 20D01-1303-CT-41.

ATTORNEY FOR APPELLANT: PATRICK F. O'LEARY, Goshen, Indiana.

ATTORNEYS FOR APPELLEE: PETER J. AGOSTINO, Anderson Agostino & Keller P.C., South Bend, Indiana; M. CATHERINE FANELLO, Krieg DeVault LLP, Mishawaka, Indiana.

NAJAM, Judge. BAILEY, J., and PYLE, J., concur.

OPINION

Page 672

NAJAM, Judge

STATEMENT OF THE CASE

Beverly Stillson appeals the trial court's grant of summary judgment in favor of St. Joseph County Health Department (" SJHD" ) on Stillson's complaint alleging retaliatory discharge. Stillson presents a single issue for our review, namely, whether there are genuine issues of material fact that preclude summary judgment.

We reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

In March 2011, SJHD re-opened a clinic to treat patients with sexually-transmitted diseases (" the clinic" ). Stillson and Courtney Dewart, both registered nurses employed by SJHD, were chosen to staff the clinic. Dr. Thomas Felger, M.D., the Health Officer for SJHD, worked at the clinic approximately sixteen hours per week. Dr. Felger was the only physician working at the clinic. Stillson and Dewart reported to Barbara Baker, R.N., the Director of Nursing for SJHD, and Baker reported to Dr. Felger. Other than on one day in June 2011, Dr. Felger did not see patients at the clinic. Stillson and Dewart saw patients and administered treatments based upon the 1998 Centers for Disease Control (" CDC" ) Guidelines for Treatment of Sexually Transmitted Diseases (" the 1998 Guidelines" ). The 1998 Guidelines " provide[d] the protocols for the treatment of various STD[s], including syphilis, in the St. Joseph County Health Department." Appellee's App. at 4.

In approximately June 2011, Stillson and Dewart became concerned that the protocols for treating patients at the clinic required them to exceed the scope of practice for a registered nurse. Stillson and Dewart shared those concerns with Baker and Dr. Felger. And on June 22, Stillson contacted the Indiana State Board of Nursing by email as follows:

I am asking for some clarification regarding " scope of practice" of a registered

Page 673

nurse working in an STD clinic in a local health department in the state of IN.
When a client presents at our clinic with symptoms of Gonorrhea or Chlamydia, we have been urine testing them and if that test is positive, treating them per CDC protocol by RN. If a client presents at clinic stating that his sexual partner has had a positive lab test for GC or CT[1], we are asking for a copy of that laboratory report and if presented, that client will be treated per CDC protocol by RN.

Question is--when client presents without support of positive partner lab, is it outside the scope of practice of RN to treat that person with antibiotics? There is no nurse practitioner or physician overseeing each client to make diagnosis.
Do " Public Health" RN's have different scope of practice?--Are RNs in Public Health setting able to diagnose disease and treat an STD on a client's word of exposure or stated symptoms without oversight by NP or physician?

Appellant's App. at 110.

In response to Stillson's email, Lori Grice, Assistant Director of the Indiana State Board of Nursing, wrote to Stillson as follows:

The Indiana State Board of Nursing nurse practice act does not define nursing scope of practice in terms of specific procedures. . . .
The nurse cannot perform or delegate those duties that are specifically reserved for other licensed individuals, and that they [sic] maintain responsibility for the safe and appropriate performance of any nursing measure that they delegate. If a nurse does not feel comfortable delegating tasks permitted or required by their employer's policy or practice, there is a decision to be made: document it, and do not allow yourself to be placed in a position where you are forced to practice unsafely, because ultimately it is an individual's license to practice that is at stake here.

Id.

On June 24, Baker and Dr. Felger prepared the following " Conference Record" regarding an incident that day:

On June 24, 2011, Dr. Felger was in the STD clinic to observe clinic operations and see clients as necessary.[2] Dr. Felger was present during a client interview. The client stated his partner had told him he had an STD possibly Chlamydia but there was no lab report of the partner named to confirm the client exposure.
Clinic practice has been to treat partners when a positive lab of the diagnosed partner lab can be obtained. In the absence of a lab report testing of the partner presenting is done and treatment initiated upon confirmation of the STD diagnosis.
Dr. Felger decided as the attending physician to treat this client based on his statement of exposure. Beverly Stillson felt that this was outside the realm of our established clinical practice and was uncomfortable giving the ordered medication and declined to administer. The director of Nursing intervened and requested the client be tested and have specimen sent to the lab for testing and gave the ordered oral

Page 674

medication to the patient prior to the client leaving the clinic.
Clinical practice in the STD clinic follows the CDC 2010 guidelines for the treatment of STD[s]. However, the attending physician always can use their [sic] clinical judgment in decisions how to best treat each individual client.
There may be times when differences in opinion as to optimal treatment or policy seem to be in conflict. Open discussion is critical but the overriding factor is the determination of the physician as to the medication order and treatment for a client.
It is essential that if a physician order for a medication is given it be administered unless there is the potential for significant harm to the client. This was not the concern in this case. The order could have been written as a verbal order on the chart or Dr. Felger could have been asked to write an order for the medication.
Registered Nurses work under the direction of the attending physician. Communication and positive working relationships are critical as part of a core health care team.
The incident reflects a breakdown in communication and clear understanding of STD policies that can be seen as policy rather than guidelines for decision making. Beverly is also new in her role in the STD clinic and is working in a clinic that has not been fully operational until the past three months.
I do not anticipate any further concerns in the working relationship with our Health Officer. A positive outcome of the meeting is the recognition of the need to meet on a regular basis with the Health Officer and STD nursing staff to address clinic operations and concerns that affect client care and overall clinic operations.

Id. at 111 (emphases added). In addition to the written reprimand, Dr. Felger told Stillson, " I don't want to hear any more about your nursing license." Id. at 108.

In July 2011, after the Indiana State Department of Health " recogni[zed]" the 2010 CDC Guidelines for Treatment of Sexually Transmitted Diseases, the clinic revised some of its policies regarding the protocols for treating STDs. Appellee's App. at 4. Effective July 11, 2011, SJHD's policy provided in relevant part that diagnoses of gonorrhea and chlamydia would be made " [b]ased on a positive [urine test] or positive lab from other health care provider[.]" Id. at 10, 11. Further, a patient presenting with " documentation of positive partner lab or patient stated history of exposure" would be treated for gonorrhea or chlamydia. Id. But the diagnosis of syphilis required a " clinical decision and laboratory diagnosis" by the attending physician " prior to the administration of Penicillin." Id. at 15 (emphasis added).

On July 19, Dewart contacted a former nursing professor by email and wrote the following:

Currently, I am working part-time in the STD clinic. At present, a fellow RN and myself have been operating under a policy signed by a health officer, that says that STD clinic staff shall use the CDC Treatment Guidelines to treat patients (based upon a positive lab result). Regarding treatment of partners, a policy outlines that partners can be treated with proof of a positive partner lab. This practice of presumptive treatment of contacts of someone diagnosed with an STD is endorsed by the CDC in the most current 2010 Treatment Guidelines.
Last week, however, we were blindsided by a new policy, with wording related to presumptive treatment that I can find no ...

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